Season 4

S4 Episode 1: Cohabitation Reform: What should it look like?

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Professor Jens Scherpe and Graeme Fraser

Further information
In this episode, we are joined by Professor Jens Scherpe (Professor of Comparative Law at Aalborg University, and academic door tenant at QEB), and our very own Resolution Cohabitation Committee Chair, Graeme Fraser (Head of Family at William Sturges) to discuss what model of cohabitation law reform should be introduced in England & Wales.

This is a seminal moment for Resolution.  It has been campaigning to achieve family law remedies for cohabitees almost since its inception in 1983, with it being high on its list of priorities since the mid-1990s. The new government has confirmed they are committed to cohabitation reform, so what shape should that take?

What Resolution members know is that the general law is not good enough for families.  If you need convincing, Jens guides us to think – do you think cohabiting families are families? If yes, then you need family law remedies (rather than remedies for people with no connection because purpose of family law (unlike general law) is to address societal, financial and gender imbalances that arise from being a family.

Which model would you support?

• Do you think, we should:
• 1. Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have a
  2. Difference model – so there is a clear difference between the remedy for a  cohabiting couple, or a married couple.

With all family law remedies, you then need to decide are you:

Compensating

1. a partner for the loss they have experienced generated by the relationship; OR

Sharing the fruits of the relationship both parties have participated in.

Graeme and Jens explore the law for cohabitees in Scotland, Ireland and Australia to consider the pros and cons of each model.  We then put them on the spot to what they think we should do in England & Wales.

In the conversation, Graeme refers us to the Law Commission report from 2007:

https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2015/03/lc307_Cohabitation.pdf

And the Vision for Family Justice: https://resolution.org.uk/wp-content/uploads/2023/11/Resolution-Vision-for-Family-Justice-full-221123.pdf

If you would like to read more about this, then please do look at Jen’s books about comparative law:

• Jens M. Scherpe (ed.), European Family Law, Edard Elgar 2016 – European Family Law (e-elgar.com)
• Jens M. Scherpe/Andy Hayward (eds.), Future of Registered Partnerships – Family Recognition Beyond Marriage, Intersentia 2017 –  The Future of Registered Partnerships ~ Book ~ Larcier-Intersentia
• Jens M. Scherpe/Andy Hayward (eds.), De Facto Relationships – A Comparative Guide, Edward Elgar Publishing, forthcoming in 2025 in the following series: https://www.e-elgar.com/shop/gbp/book-series/law-academic/elgar-comparative-family-law-series.html

S4 Episode 2: Black History Month: Reclaiming the Narrative

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Natasha Shotunde, Olamide Ogunrinade and Donna Goodsell

Further information
This month we are joined by Natasha Shotunde (Garden Court Chambers), Olamide Ogunrinade (Garden Court Chambers) and Donna Goodsell (Goodsells Family Law) to celebrate Black History Month.  Natasha and Olamide are members of the Black Barristers Network https://blackbarristersnetwork.org.uk.  Donna is one of the Co-Chairs of Resolution’s Equality & Diversity Committee.

Natasha tells us about the last Race at the Bar report.

https://www.barcouncil.org.uk/resource/race-at-the-bar-report-2021.html

The statistics reveal a worrying lack of diversity in the Bar.  Natasha tells us that these figures are due to be updated soon.

Donna explains that Resolution last surveyed its membership in 2019, which found that the membership was disproportionately white:

https://resolution.org.uk/wp-content/uploads/2020/01/resolution-diversity-data-report.pdf

Resolution is currently conducting a survey to see whether these figures have improved.

Donna tells us that the starting point into making Resolution more diverse has been to ensure that the Committees are more diverse.

Olamide explains the research into the impact of race on outcomes in the Family Court.

https://www.nuffieldfjo.org.uk/wp-content/uploads/2023/05/nfjo_briefing_paper_ethnicity_20230518_FINAL.pdf

The research continues as to why outcomes are impacted by race. In the meantime, she draws are attention to the anti-racist practice statement produced by the Sussex Quality Circle:

https://www.sussexfamilyjusticeboard.org.uk/wp-content/uploads/2023/08/Family-Court-anti-racist-practice-statement-Final-app-FJYPB-00.12.2022.docx

Natasha, Donna and Olamide leave us with an idea for one thing we can all do to make a difference today.  Olamide tells us to be curious.  If we are all curious about each other’s race, religions, and backgrounds we can create a different tomorrow

S4 Episode 3: Domestic Abuse in Financial Remedy

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Samantha Hillas KC, Geoffrey Kingscote KC and Olivia Piercy

Further information
This month we are joined by Samantha Hillas KC (St John’s Buildings), Geoffrey Kingscote KC (1 Hare Court) and Olivia Piercy (Hunters) to discuss domestic abuse in financial remedy proceedings.  When it will impact on the outcome, and how we can make the process of agreeing financial arrangements, or an order, safer for victim-survivors.

Geoffrey explains the law in relation to s25(g), the test in Tsvetkov v Khayrova [2023] EWFC 130  (04 August 2023), and how Recorder Reardon approached the quantification following findings of conduct in DP v EP (Conduct: Economic Abuse: Needs) [2023] EWFC 6. Geoffrey explains that conduct is restricted to a very small number of possible cases as a result of the test of exceptionality. Sam makes the point that the assessment of needs is likely to be different if need arise from domestic abuse or for another reason. Olivia draws our attention to the Home Office research about the financial impact of domestic abuse:

https://www.womensaid.org.uk/wp-content/uploads/2019/12/Economics-of-Abuse-Report-2019.pdf

We then go on to consider how proceedings could be reformed so as not to create more litigation, whilst also making the process safer and fairer for victim-survivors.  We agree that the current statutory test for Legal Services Payments Orders is not fit for purpose, and discuss other ideas for reform including re-drafting the Form E.

Have you read Resolution’s report into the interplay between Domestic Abuse and the treatment of finances on separation and divorce?  If not, you should read this groundbreaking research.

https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf

Please let Resolution have your views on communications@resolution.org.uk with a clear subject line ‘Domestic abuse in Financial Remedy’.

S4 Episode 4: Hair Testing in the Family Court

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Sarah Branson and Professor James Coulson

Further information
This month we are joined by Sarah Branson (Coram Chambers) and Professor James Coulson (Professor in Clinical Pharmacology and Toxicology at Cardiff University).

We discuss the concern that over-reliance on the numbers generated in hair testing can lead to miscarriages of justice.  The issue is that the use of a standardised cut-off levels have a racial bias, because the dark melanin in the hair helps to incorporate the drugs in the hair so someone with black hair will have a much higher reading than someone with red or blond hair, even if they have used the same amount of drugs over the same period of time.

Sarah recommends that from now on when hair testing is commissioned that it has to be instructed like other expert evidence – with a letter of instruction, there is a full forensic history.  Sarah has drafted a template LOI and order which you can access on the Coram website: https://www.coramchambers.co.uk/resources/hair-strand-testing-resources/

James makes the point that in other Courts (like to civil, criminal or coroners courts) it is unusual to have an analytical chemist commenting on the wider interpretation of the result.  James agrees that it is very important that evidence is not seen in isolation.  James takes us through the information that he would to see in these instructions in the future.

Sarah reminds us that we should start thinking about this evidence as expert opinion evidence rather than elevating the presumptive weight that should be given to the evidence.  Sarah directs us to the judgment of Lord Peter Jackson in D, Re (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498 (10 May 2024)

https://www.bailii.org/ew/cases/EWCA/Civ/2024/498.html.  Sarah points out the numbers from a test is the science but what those numbers mean is just someone’s opinion like any other expert evidence.

During the discussion, Sarah and James refer to:

The incorporation of drugs into hair: relationship of hair color and melanin concentration to phencyclidine incorporation M H Slawson, D G Wilkins, D E Rollins J Anal Toxicol 1998 Oct 22.

The effect of hair color on the incorporation of codeine into human hair. Rollins DE, Wilkins DG, Krueger GG, Augsburger MP, Mizuno A, O’Neal C, Borges CR, Slawson MH.J Anal Toxicol. 2003 Nov-Dec;27(8):545–51. doi: 10.1093/jat/27.8.545.

Cuypers E, Flanagan RJ. The interpretation of hair analysis for drugs and drug metabolites. Clin Toxicol (Phila). 2018 Feb;56(2):90-100.

Forensic Science Internation (2018)

S4 Episode 5: The Three Rs – Reluctance, Resistance and Refusal

Hosted by: Anita Mehta and Simon Blain

Guests: Jenny Beck KC, Dr Jaime Craig and Zoe Fleetwood

About this episode
This episode is a strong start to the year.  It is essential listening for all professionals working with separating families.  We are joined by Jenny Beck KC (Beck Fitzgerald) , Dr Jaime Craig (Consultant Clinical Psychologist) and Zoe Fleetwood (Mills & Reeve) to discuss situations where children are reluctant, resistant or refusing to see the other parent, as well as parents engaging in psychological manipulation of their children by alienating behaviour.

We examine the Family Justice Council guidance in this area. The report is both erudite and succinct at only 30 pages long and should be read by everyone involved in this field:

https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf

Zoe reminds of what has happened in the last 10 years to lead us here from PD12J, to the presumption in favour of a parent’s involvement which was inserted into the Children Act in 2014, LASPO which removed legal aid, the Domestic Abuse Act, Re HN , RE C [2023] EWHC 345 (Fam), Re S (Parental Alienation: Cult) : [2020] EWCA Civ 568 https://www.judiciary.uk/wp-content/uploads/2020/04/re-s-a-child-judgment290420.pdf, the Harm report from 2020, and the Domestic Commissioner’s Abuse Commissioners report of 2023https://domesticabusecommissioner.uk/wp-content/uploads/2023/07/DAC_Family-Court-Report-_2023_Digital.pdf. Zoe concludes with the case of Re (Parental Alienation: Factual Findings) [2024] EWFC 75 which maybe an example of the Court starting to change coursehttps://www.bailii.org/ew/cases/EWFC/OJ/2024/75.html

Jenny reminds us that there are three elements that a Court needs to find before concluding there have been alienating behaviours:

1. There must actually be a child who is reluctant, refusing or resistant to engage in a relationship with a parent;
2. That reluctant, refusal or resistant must be as a result of something other than appropriate justified rejection, or caused by alignment, affinity or attachment.
3. It has to be as a result of other behaviours that has impacted the child and that has led to the child’s reluctance, refusal or resistance.

Jaime points out that the child’s behaviour is not in itself evidence of the adult’s behaviour.  Nor is the absence of a reason for a child not to want to see the other parent proof that a child is alienating.

The guidance reminds us that there is not an equivalence between domestic abuse and parental alienation.  The guidance also reminds us about the importance of the choosing appropriately qualified experts in complex family situations.

Jaime warns us of the dangers of pseudo-science and the psychobabble.  He cautions against jumping to a conclusion that a child has been alienated if they are reluctant, refusing or resistant to the other parent.  For example, a child may just be exhibiting attachment response, or a child demonstrating an affinity for a particular parent, or they may have come to their own decision about how they have understood the situation.

All of this is not to say that there are never occasions when parents have psychologically manipulated their children. We know that they do.  Indeed, sometimes perpetrators of abuse psychologically manipulate children to believe the other parent is a danger.  The point is that the burden of proof should not be reversed, and the Court be drawn into approaching the case as if a parent has to prove they are not engaging in alienating behaviours.

Zoe links back to when we last discussed this topic from March 2022; Finding the Middle Ground; Parental alienation and High conflict cases, with Dr Mark Berelowitz and Alex Verdan KC.https://resolution.org.uk/podcast/resolution-podcast-season-1/

Finally, we ask our guests to wrestle with the question of what professionals should do if they have been involved in a case where the Court has relied on advice from an expert who lacked the appropriate qualifications, or has made recommendations based on what we do is pseudo-science.  Jenny suggests that if there has been an error in process then the professional or the Court may now need to engage with what is in the best interest of the child, therefore an appeal out of time maybe an appropriate step in some cases.

Please note that Jenny and Jaime were the Chairs of the Family Justice Council working group that wrote the guidance.  However, they appear on this episode in their personal capacity and were not speaking on behalf of the Council.

S4 Episode 6: YRes takeover – Thriving in Law: Culture, Careers, and Community

About this episode

Hosted by: Annie Boxer and Lauren Guiler

Guests: Matthew Richardson and Trevor Sterling

Further information