Season 4
Listen to all episodes of the first series of Talking Family Law – the official Resolution podcast.
Listen on the go:
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:
-
- Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have a
- 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
-
- 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:
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.
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:
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)