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 [email protected] 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

S4 Episode 7: Capacity Issues in Family Litigation: The Lights Are Not Out!

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Joseph O’Brien and Laura Flanagan

Further information

We are joined by Joseph O’Brien of St Johns Buildings and Laura Flanagan of Burgess Mee to discuss how to manage cases that involve capacity issues.

Laura has recently co-authored an article with Maisie Lockyer on this issue:

https://financialremediesjournal.com/content/family-proceedings-and-litigation-capacity.ec7c993244094031bbcb75338ef9c29e.htm

Unfortunately, court commitments meant Maisie was unable to join us for the recording.

Joe tells us that the Mental Capacity Act 2005 is the basis on which all capacity assessments should be undertaken. He reminds us that there is a presumption of capacity, but the presumption of capacity can be rebutted. The test is set out in s.2(1):

2. People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Laura directs us to the Official Solicitor’s website, which includes guidance notes and the pro forma for the Certificate as to Capacity:

https://assets.publishing.service.gov.uk/media/63e3b03ad3bf7f172ccae151/capacity-to-conduct-proceedings-certificate.pdf

Joe reminds us that capacity involves a two-stage test: the first stage considers whether the person is unable to make the decision, and the second examines whether that inability is caused by an impairment of the mind or brain, as per A Local Authority v JB (Rev1) [2021] UKSC 52 

https://www.bailii.org/uk/cases/UKSC/2021/52.html

We also discuss what should happen when the protected parties have fluctuating capacity. Laura and Joe remind us that you need to make an application to terminate the appointment of the litigation friend if your client regains capacity, but you must apply for the litigation friend to be reappointed if they lose capacity again.

Finally, we discuss how the Court makes the decision about whether the protected person should give evidence. Joe reminds us of the practice direction on participation of vulnerable witnesses

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence#1

S4 Episode 8: Half a Century in Family Law

About this episode

Hosted by: Anita Mehta and Simon Blain

Guest: Sir Jonathan Cohen

Further information

This month we are joined by Sir Jonathan Cohen (now an arbitrator and private FDR Judge at 4PB) to discuss the last half century in family law.

Sir Jonathan tells us about how family law has changed over that time. He recalls the humiliation caused by all divorces being heard in public, and the seminal changes following the Children Act 1989 and White v White.  He also talks about how delayed the system has become, and the difficulty caused by the proliferation of cases without an equal increase in Judges.

Sir Jonathan does not accept the Law Commission concern that the law in respect of how a couple divide their finances is uncertain.  Like many of us, he believes it is certain if you know the detail of the law, the issue is litigants having access to that certainty and being able to find the information without having to comb through judgments and the internet. Sir Jonathan mentions Courtney Legal https://courtney.legal/team as helping provide this information.

We were blown away to hear Sir Jonathan say that in his personal view the justice system has under recognised the impact of domestic abuse in financial remedy cases.  Sir Jonathan refers to the report by KPMG of the impact of domestic abuse on earnings from 2019; ‘The workplace impact of domestic violence and abuse’:

https://newscentre.vodafone.co.uk/app/uploads/2019/11/KPMG-Domestic-Violence-and-Abuse-Report-Nov19-1-1-1.pdf

Sir Jonathan tells us that in his view that there is unfinished business when it comes to transparency in financial remedy cases.  He tells us that reporters are welcomed into Courts now, but there is division as to whether it is right to have parties’ names and the details of all their finances published.   Sir Jonathan says that he is not in favour of publishing the names of parties in financial remedy cases, unless their names and finances are already in the public domain or there is some other good reason.

Sir Jonathan encourages all practitioners who are thinking about judicial appointment to apply for a part-time role to dip their toe in the water. He opines that if you are starting to mourn the bad results, more than you celebrate the good results, that is when you should be thinking about judicial appointment, and when you get to the stage of wanting to find the ‘right’ result rather than a ‘win’, that is when you should be thinking about full-time appointment.  He tells us he has thoroughly enjoyed being a full-time Judge.

It’s a strong finish with Sir Jonathan saying Schedule 1 of the Children Act 1989 is no longer fit for purpose, and music to Resolution members’ ears that the provision we make for unmarried parents is completely out-dated.

S4 Episode 9: Financial Remedy: to reform, or not to reform?

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Professor Nicholas Hopkins, Emma Hitchings, and Jo Edwards

Further information

This month we are joined by the Law Commissioner, Professor Nicholas Hopkins (who led the scoping report), Emma Hitchings, Professor of Family Law at the University of Bristol (who led the Fair Shares reports), and Resolution’s Family Law Reform Group chair, Jo Edwards of Forsters LLP. The Law Commission has found (in its scoping report published in December) that the current law does not provide a cohesive framework in which couples going through a divorce or dissolution of a civil partnership can expect fair and sufficiently certain outcome. In particular they found that the law lacks certainty and accessibility to the extent that it could be argued to be inconsistent with the rule of law.  They concluded that the law needs reform.

We discuss:

• The Law Commission Scoping report: https://lawcom.gov.uk/publication/financial-remedies-scoping-report-and-summary/
• The Fair Shares Project: https://www.bristol.ac.uk/law/fair-shares-project/
• And of course Resolution’s own Vision for Family Justice: https://resolution.org.uk/campaigning-for-change/vision/  and our Domestic Abuse in Financial Remedy work https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf

Emma and Jo joined us when the first Fair Shares reports were published in 2023.  Do listen to our previous episode, Season 3 episode 6, which explains the detail and data in those reports.

We talk about spousal maintenance, and that whilst a lot of discussion has been devoted to the term of spousal maintenance, in fact it is the quantum that causes most uncertainty.  Emma tells us there are twice as many spousal maintenance orders made in London than all the other regions combined.  There seems to be a legitimate explanation for the ‘London difference’ in the higher costs of living in London.

The Law Commission found that conduct is an additional source of unfairness that victim-survivors face in how financial remedies are determined.  Emma tells us that the Fair Shares research found that domestic abuse survivors were less likely to reach agreement than divorcees where there has not been abuse,  very few domestic abuse survivors successfully used mediation, and that 14% will ultimately have their claims determined by a judge, compared to only 4% of financial remedy cases that do not involve domestic abuse.  The Fair Shares research found that female domestic abuse survivors are in a poorer financial position than other female divorcees.  Jo told us about the incoming Australian legislation that will see family violence taken into account when determining parties’ contributions to the marriage as well as the Resolution position on the Law Commission report/financial remedies reform

The Law Commission found that there is still real concern that pensions are not sufficiently taken into account.  The reality is that position has not changed that wives often keep a greater share of the home to accommodate the children, and the husband tends to retain his pension.  Should there be a default of equal pension sharing?

Finally we discuss the four models of potential reform.  If you are still making your mind up about which model should be the foundation of any reform then this episode is invaluable!

S4 Episode 10: LIVE from National Conference: Serious coercive control with Jane Monckton-Smith and Ruth Dodsworth

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Jane Monckton-Smith and Ruth Dodsworth

Further information

Listen to a live recording of the podcast at Resolution National Conference with Ruth Dodsworth (journalist and presenter) and Professor Jane Monckton-Smith (Forensic Criminologist).

Elaine Richardson wrote this review which we replicate to tell you all about the conversation:

A conversation that stopped the room.

At the Resolution National Conference, we had the privilege of hearing a profoundly moving and eye-opening Keynote Live podcast hosted by Anita Mehta and Simon Blain. They were joined by Professor Jane Monckton-Smith and journalist Ruth Dodson—two voices whose insight and courage left a lasting impression.

Ruth shared her personal story of surviving coercive and controlling behaviour in her marriage—an experience made even more striking by her words:
“I’m one of you, and it happened to me.”

As family justice professionals, that hit hard. It was a stark reminder that abuse does not discriminate—and denial can be part of survival.

Professor Jane Monckton-Smith brought her groundbreaking research into focus, including the eight-stage homicide timeline that has transformed our understanding of domestic abuse, coercive control, and stalking. She shared that:
“Coercive and controlling behaviour is made up of rules and expectations—and one rule you can’t break is to separate. Separation just changes the type of control you are subjected to.”
“Breaches of injunctions need to be treated much more seriously than they currently are.”

Ruth spoke with raw honesty about the financial abuse she endured—how it stripped away her means to leave. And Jane reminded us that the most dangerous and common type of stalker is the “rejected stalker”—obsessed, fixated, and often missed.

The audience was silent. Transfixed. Moved.

This keynote was not just a session—it was a call to action. For those of us working in family justice, it was a powerful reminder: we must stay alert to the signs of coercive control, listen with care, and never underestimate the danger.