The future of family law

Chief Justice Frank Clarke opened the Four Jurisdictions family law conference by quipping that he had worked on some ‘big-money’ cases in the sector, but found the term ‘ample resources’ far more suitable.

The upcoming GDPR had “scary implications” for family lawyers, he said, and forensic accounting would remain at the heart of difficult family law cases.

“The proposals in Irish legislation to transpose the GDPR into Irish law include the creation of a specialist internal judicial data protection commissioner.

"We will have to create our own stand-alone data protection commissioner within the judiciary, and also our own stand-alone body to define the parameters of what may or may not have to be disclosed,” the Chief Justice revealed.

He added that the significant interconnection between the four jurisdictions represented at the conference, at Dublin’s Conrad Hotel on 27 January, 2018 would continue fully, post-Brexit, because it was driven by the inter-relatedness of people. Of Britain’s entire population, at least six million were entitled to Irish citizenship, he noted.

“That interconnection is going to continue – whatever the legal architecture within which disputes that have some element of cross-border difficulty attached to them may be,” he said.

Forum Shopping

On the issue of ‘forum shopping’, the Chief Justice said: “There is a perception, rightly or not, that the regime in respect of children of troubled parents who are taken into care may be somewhat more benign in this jurisdiction than in the UK. There is a feeling that the likelihood of children being formally adopted out of that kind of situation is greater in the UK than in Ireland.”

On that topic, leading British judge Lord Justice Peter Jackson questioned whether the ancient institution of adoption could survive in the internet age. Dublin-born Mr Justice Jackson was appointed to the British Court of Appeal in 2017.

Speaking to the Gazette, he said: “That model of adoption has undoubtedly been affected by the internet. Whatever one’s beliefs about non-consensual adoption, one has to take account of that reality. There is no denying that the model of a child passing completely beyond knowledge [of the parents] is increasingly understood as not fully practicable in the internet age.”

Mr Justice Jackson praised Dr Sarah Fennell of the Family Lawyers Association of Ireland for organising a speaking programme that reflects how progressive the Irish family law field is in grappling with the most pressing issues, ahead of time.

The conference itself was organised by FLAI chair Clare Feddis and vice-chair Nuala Jackson SC.  

“Identity is the fundamental constituent of family law,” Mr Justice Jackson declared. “Historically, our law of persons has depended upon fixed conceptions of identity based upon conformity in matters of clan, family, gender, race, class, sexual behaviour. In our lifetimes, many of these certainties have dissolved.

"Social structures that were once moulded by religious faith are now being moulded by the possibilities of science and technology. Every aspect of our identity is being called into question.

"Our very genetic make-up can now be altered by editing the human genome, affecting not only ourselves, but generations to come,” he said.

In the context of all this momentous change, Mr Justice Jackson wondered whether we had the correct balance of rights between parent and child. “When conception can take place outside the body involving a seemingly endless range of variables, from mitochondrial donation, to IVF, to surrogacy, who are the parents?

“What are the downstream consequences of individuals having the right to identify their own gender, or of the extension of marriage – with all its special legal consequences – to same sex couples? Or of the fact that there is no global consensus about many of these things. Is our old legal grammar adequate to describe our own identities, let alone the identities of generations yet to come?” he asked.

On the topic of non-consensual adoption, Frances Heaton QC, who acts in complex British public law child proceedings, said that all adoptions were ‘draconian’, in that they stripped a child of birth parentage.

Runaway train

She said that the 26-week time period for deciding on child-law cases that applies in the British system was a ‘runaway train’, and that social workers could feel railroaded into identifying adoption as the best path for the child.

Heaton cited a survey of adopted people who described identity as a lifelong issue, and particularly the issue of contact, post-adoption, with birth parents.

“I would argue that forced adoption is, so often, living a lie, that we really do need to [have a] debate. Why is it that long-term fostering, in our jurisdiction, is seen as a lesser form of placement for children? Fostering allows a child to continue seeing their birth family, and to understand the problems which the birth family had that led them to being placed into care.

“Sometimes, I fear, we make decisions because that is what the adults want, rather than what is strictly in the best interests of the child,” she said.

‘Quickie divorce’ consequences

The keynote speaker at this year’s conference was Lady Brenda Hale, President of the Supreme Court of England and Wales, whose started her legal career in family law. Lady Hale observed that, on the Supreme Court, she is not as lonely as she once was, since four out of its 12 justices are former family law practitioners.

“They all began their full-time judicial careers in the family division of the High Court. Don’t you think that’s wonderful?” she asked, to general affirmation from the gathering. She commented that the Supreme Court’s composition was a great tribute to the intellectual and other qualities required for family law.

Indeed, Mr Justice Jackson had earlier observed that Lady Hale’s progress through the system to the very top of the British legal profession was proof of the intellectual calibre and toughness absolutely necessary to the practice of family law.

Lady Hale noted also that three of her Supreme Court colleagues now had Irish passports. One was from Northern Ireland, and two had claimed citizenship through their ancestry.

Lady Hale herself has two Irish grandchildren. She joked: “I also wish that one could get Irish citizenship by ascent as well as descent, because I am not among the six million entitled to an Irish passport!”

Commenting on certain differences between the jurisdictions of Ireland, and England and Wales, Lady Hale said that Ireland was fortunate in having ‘no-fault’ divorce, since there was less incentive to use adultery or ‘unreasonable behaviour’ to get a quick decree, as was the case in her jurisdiction.

It may seem paradoxical that ‘no-fault’ divorce is aimed at strengthening family responsibilities, but in my view, it is 

“In 2015, 60 per cent of the divorces in England and Wales were based on adultery or [unreasonable] behaviour, but only six per cent in Scotland,” she explained.

“It may seem paradoxical that ‘no-fault’ divorce is aimed at strengthening family responsibilities, but in my view, it is.” she said.

On the question of reforming the English law to remove acrimony, while also bolstering marriage and family responsibilities, Lady Hale cited a 1990 Law Commission report, which said that flimsy ‘behaviour’ divorce petitions promote unnecessary hostility and bitterness.

They add needlessly to the anger, pain and grief that accompany the end of a marriage, do nothing to help save a marriage, and can make things worse for children who suffer most from conflict.

“Under present [English] law you can get a very quick divorce and then spend years arguing about the consequences. What one wants to do is have as many as possible of the consequences sorted out before you are free to go and marry someone else,” Lady Hale said.

‘Very puzzling’

On the question of legal recognition for family life, Lady Hale said that what was important was the social and psychological commitment to those responsibilities.

She said that she found ideological objections to the institution of marriage “very puzzling”, since its patriarchal features had disappeared under the law.

“It’s a perfectly serviceable method of giving legal status, rights and responsibilities to couples who want to be together. Why are so many same-sex couples so keen to marry, when they had a perfectly serviceable method … in civil partnership?

“It shows very strongly, that in both directions, marriage still has social and psychological significance, which has nothing to do with the legal consequences.”

Lady Hale said it was more important that couples ‘do something’ to regularise their unions, whether that be marriage or civil partnership. Why should we mind [which they choose], as long as they do something?

“In my view, we ought to be happier that they want to make a legal commitment, whichever one it is.”

She expressed scepticism about pre-nuptial agreements and whether they should be regarded as “magnetic” before the law. “In almost every case, the object is to agree to less than the recipient would otherwise be entitled to. The object is to preserve more for the better-off spouse,” she pointed out.

‘Meal ticket for life’

Lady Hale took umbrage with the term ‘meal ticket for life’, saying that marriage involved responsibility to meet each other’s needs, and a creation of interdependence. “Please, can we stop talking about a ‘meal ticket for life’ as if some people, at least, haven’t earned it, because some of them have.”

“I agree that it should not be assumed that the highest aspiration for a woman is to become dependent on a man, but I do believe, along with the Family Justice Council, that marriage is a partnership in which spouses, whatever their sex, often play difference roles, often varying over time, for their mutual benefit and for the benefit of their children, and I would add, often for the benefit of their elderly parents and relatives.”

Those roles should be entitled to equal respect and recompense, she pointed out.

On financial needs, she said that marriage might involve one spouse discharging family responsibilities at the expense of the development of their employment potential. It was “terrific” that Irish law took into account the fact that the future earning capacity of a spouse might be impaired by taking up caring duties.

“It is generally right and fair that relationship-generated needs should be met by the other party, if resources permit,” she said, quoting 2016 guidance on financial needs from the Family Justice Council in Britain.

“The alternative view is that marriage is a partnership, rather like a commercial partnership, which should be dissolved with an equal sharing of present assets, with no provision for future needs, unless there would otherwise be grave hardship,” said Lady Hale, pointing out that this was the situation in Scotland.

She described the British system of several different sets of proceedings to decide matters relating to the family home, divorce, financial remedies, and the children – all with different rules and different judges – as “inexplicable” because everything was interrelated and should be heard in one forum.

The removal of legal aid of any sort from vast areas of family practice was based on an erroneous view of family lawyers as prone to needless fighting, she said.

Local Dublin solicitor Keith Walsh said that the UK was in denial about the impact of Brexit on family law. “The folly of Brexit will be visited on divorcing couples where there is a dispute of jurisdiction involving the UK and Ireland post Brexit.

“The ‘no deal’ scenario would result in the worst possible result for the UK and Ireland and the impact would be greatest, not on the lawyers, but on their clients.”

Lobby

He called on all family lawyers on the islands of Ireland and Britain to join forces to lobby their government and the EU to make sure that family law was put on the Brexit agenda.

Recently retired Mr Justice Henry Abbott concluded the conference by observing that, even post-Brexit, Britain would not be without a friend [in Ireland] in terms of reciprocal legislation, as there was a track record of co-operation in enforcing alimony payments as far back as the 1970s, in far more difficult times.