Family Justice Reform

Jim Shannon Excerpts

Wednesday 15th November 2017 Westminster Hall

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Member for Fareham (Suella Fernandes) on setting out such an effective case. When researching this subject, I was very conscious of its complexity—she referred to that—and I want to look at a couple of points in particular. The scope of the debate far outweighs the allocation of time that we have to explore, discuss and come to conclusions, but it is an opportunity to put down some markers on constituency cases that need consideration. I am pleased to see the Minister in his place and, as always, I look forward to his comprehensive reply.

I mainly work in my Ards constituency office, with four female members of staff. There is one male and another female staff member in one of my other offices. It is hard to believe that there are so many women in what the media has made out to be a male-dominated world—in my office, they outnumber us by three to one, and that is the way life is. During a recent coffee break conversation, some of my staff highlighted to me a legal issue they had dealt with, which I want to put on record—it is one of two things I want to put on record in Hansard today.

Northern Ireland, and I suspect other parts of the country, has very little legal protection or standing for those who are common-law partners. A lot of people have the perception that common law gives the same protection as a marriage licence, but that is not the case. It was only when that came to my attention through my constituency office that I recognised that this is an anomaly that needs to be addressed, and I want to present that case today. What I found surprised me, but it is certainly the case, and the Northern Ireland Direct website provides further information:

“Most people think that after they’ve been living with their partner for a couple of years, they become ‘common law husband and wife’ with the same rights as married couples. This is not the case. There is no such thing as ‘common law marriage’. In fact, couples who live together, also called co-habitants, have hardly any of the same rights as married couples or civil partners. Legal and financial problems can arise if you decide to separate, or if one of you dies. And while you do have legal protection in some areas, you should take steps to protect yourself and your partner.”

The website is clear and makes people aware of that, but the fact is that people do not look at those things unless the need arises.

In my office, we have had a couple of examples of people who have been together for a long time, and I would like to give an example without mentioning any names or circumstances. Let us take a couple who have lived together for 10 years. The lady moves into the man’s home and begins to pay into the house. Her name is not on the deed, and therefore there is little protection. I put it to the Minister that that should not be the case. I can understand that when there is a short-term relationship that does not work out, but not in cases where partners are co-habiting for years. They have no legal protection whatever. It is up to us to step up and put in place those protections.

[Tim Loughton]

The hon. Gentleman is making a very good point, which I make in my forthcoming private Member’s Bill about extending civil partnerships to opposite-sex couples. There are 3 million couples in this country living in the circumstances he describes, more than half of whom have children, who have no rights—financial, tax or inheritance, and so on. I hope he will support my Bill, which would extend the rights that married couples have to couples who do not want to enter a formal marriage. That relationship could be recognised by the state and they could be given all those rights through extending civil partnerships.

[Jim Shannon]

I thank the hon. Gentleman for his intervention and explanation. There is no reason why we cannot support that—indeed, I am going to say those things right now. I fully support what he has put forward.

In the example of the lady who moved in and paid into a mortgage, everything in her relationship was in the name of her partner—their house, their car and every other loan they took out. At the end of the relationship, which ended through no fault of her own, she ended up with absolutely nothing. I find that quite annoying, and I want to put that on record. There should be no young woman or man who has paid off someone else’s mortgage, only to receive marching orders because the grass is greener on the other side.

I ask the Minister to consider working with all the devolved Assemblies—as long as we have a Northern Ireland Assembly, of course—to tighten up protection and responsibilities for long-term co-habiting partners. At the very least, people should be made aware that the common-law principle is a myth. When they chose to move in with someone rather than to formalise their choice, they are left open, and legal redress is a long and drawn-out process. There is a process, but it is laborious, convoluted and difficult to see through. In my introduction, I said how complex the situation is; the stories of the people who come to tell me what they have had to go through to try to get to the end of the road are quite unbelievable.

People can prove they have lived in a house through direct debits and other bills that they pay, but that process should not be difficult or open to badness—if I can use that terminology—from one partner, leaving the other partner homeless and hopeless.

[Ian C. Lucas]

The hon. Gentleman is making a compelling case. There is a horrible consensus emerging in the debate, particularly on common-law marriage. The idea emerged from I know not where, but it has never ever existed. The other important aspect is that the whole process is hideously expensive. For someone to establish their rights through the courts, which may be possible through a resulting trust or a constructive trust, is impossibly expensive for most ordinary people.

--- Later in debate ---

[Jim Shannon]

I am glad that the hon. Gentleman made that intervention, because that is something I had not focused on and it is good to have it on record. The process is hideously expensive, and prohibitive, by the very nature of the costs involved.

I am very conscious of the time, so I shall fire on, but another issue I wanted to focus on is reform of grandparents’ rights, which the hon. Member for Mid Worcestershire (Nigel Huddleston) commented on. I have dealt with a number of cases in my office where this problem arises. Grandparents have no special right to see their grandchildren in England, Wales and Northern Ireland, but can ask for contact, just like any other interested party. I tell you what, Ms Ryan, people go through that process only because they love their grandchildren and would do everything they can to try to see them; the process would put people off.

Winning contact through the court system is, at best, a two-step process. The first step is to ask for leave from the court—in other words, grandparents must ask the court for permission to petition. If the first step is successfully negotiated, grandparents must ask for a contact order. Contact orders specify direct or indirect contact. I am a doting grandparent of two young girls, and I would find it impossible to comprehend being kept from them. Grandparents come to me and tell me about their cases, and I understand the heartache and pain they feel if, perhaps due to the actions of their child, they are prevented from seeing their grandchild. To petition the court is onerous and frightening. For cases in which the behaviour of the grandparents is not an issue, I say respectfully to the Minister that he should implement a new system, whereby access is expected unless there is a reason not to grant it.

I do not pretend to be a legal expert. When legal issues are referred to me in my office, I always seek a legal opinion from those who know best, as I should. I believe that it would be a worthwhile use of the Department’s time to give grandparents the knowledge that, no matter what the circumstances of the familial breakdown are, they have a legal right to see their grandchild for a set amount of time. That should be there for them. I ask the Minister to take that into consideration when undertaking a review of family law.

Families exist in many different forms, and the law must be fluid and capable of changing to best meet their needs. It is impossible to legislate to cover every eventuality, but we can and must offer more help and protection. I say respectfully that the Government need to do that. I ask the Minister to consider those two examples, which I have been directly involved with through my office, in looking at how we can have better laws.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Before my hon. Friend concludes, does he agree that, although mediation does not always end up in a happy place, if it is entered into amicably by both sides, it can assist in resolving matters at an early stage or in making the separation much less distressing, particularly for the children?

[Jim Shannon]

Yes, mediation can help. In many cases in which I have suggested it, there has been a successful conclusion. That does not happen in every case, but it is good to have a mediation process in place so that we can negate the negative and problematic conclusions.

I look to the Minister for support and advice about how best we can address these examples—I gave two, and other hon. Members will put forward many others. We need better laws and better protection.

--- Later in debate ---

[Dr Lee]

I thank my hon. Friend for his intervention. As a constituency MP, of course I recognise examples of the situation he describes. I assure him that I will pass on his concerns to the Minister responsible.

[Jim Shannon]

I think the Minister said he was about to conclude, but I wanted to intervene before he did. I know he is not the Minister directly responsible, but individuals in the Chamber have brought some things to his attention. May I request a response from him on each of those individual issues—a comprehensive response, I hope? I certainly wish for a response on the two examples that I brought to his attention.

[Dr Lee]

I thank the hon. Gentleman for his intervention, but I will come on shortly to questions asked in speeches and interventions. If I fail to answer all the questions, of course a response will be arranged.

My hon. Friend the Member for Fareham is not alone in calling for greater transparency in family proceedings. Openness can lead to greater accountability and improve public understanding of the decisions of the court. The Government therefore fully recognise that family proceedings should be as transparent as possible. That is why we welcome the progress that has been made in this area in recent years. Since 2009, accredited media have been allowed access to certain hearings in the family courts, and in 2014 the president of the family division introduced judicial guidance that has resulted in the publication of more judgments than ever.

Arguments in favour of greater transparency, however, must of course be weighed against the need to safeguard children and their family’s privacy. The family courts often consider extremely sensitive information about individuals which should not become public. They must be cautious about putting information in the public domain that, even if anonymised, could lead to the inappropriate identification of vulnerable parties. We continue to work with senior judiciary to ensure that the right balance is struck between transparency and privacy.

I will now respond to some of the specific points made by hon. Members during the debate. The hon. Member for Strangford (Jim Shannon) raised the role of grandparents. We recognise the important role that grandparents can play in a child’s upbringing. It is obviously preferable to reach an informal agreement on contact with the family, and we encourage families to consider the role that mediation can play. If that fails, grandparents can apply to the court for an order. In answer to the question on cohabitation and civil partnerships, cohabitants have some legal protections under the general law. Parents who have cohabited also have access to the court for orders relating to children. The Government Equalities Office is evaluating the impact that the marriage of same-sex couples has on the take-up of civil partnerships. It will also carefully consider the Court of Appeal judgment before the Government decide on their next steps.

The hon. Member for Wrexham (Ian C. Lucas) raised the question of access to justice and support for litigants. The Government have taken action to improve support for litigants in person, including sponsorship of plain English guidance. The Family Justice Council has produced a range of accessible guides for separating couples, which are available on the advicenow website. In answer to his earlier intervention with regards to legal aid cuts destroying access to justice, I respond on behalf of the Government that that is not the case. Legal aid is a vital part of our justice system but we must ensure that it is sustainable and fair for those who need it, for those who provide legal services as part of it, and fair for the taxpayer who ultimately pays for it. We have made sure that legal aid continues to be available in the highest priority cases, for example where people’s life or liberty is at stake, or where their children may be taken into care.

My hon. Friend the Member for Wells (James Heappey) raised the challenges of potential vexatious use of the family courts. We have been working closely with the judiciary to improve in-court protections for vulnerable court users. New court rules and a practice direction come into force this month with the same aim. We are determined also to give family courts power to prevent unrepresented abusers from cross-examining their victims and the court has powers to manage cases appropriately and to prevent vexatious litigation.

My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) raised the question of the Government agreeing to introduce 50:50 parenting. The Government are aware of the difficulties that non-resident parents can face when attempting to spend meaningful time with their child following separation or divorce. However, introducing an automatic presumption of shared parenting in all cases would not always be in the best interests of the children involved.

I will turn to the first question raised by the shadow Minister, that too many children are taken into care for inadequate reasons. The law is clear that local authorities must first consider placing a child with relatives or friends. A loving, supportive family is the best place to bring up children. The Government have always been clear that the right to permanence option—whether adoption, special guardianship, kinship care or foster care—will always depend on a child’s individual needs and circumstances. The ultimate decision to remove children from their families rests with the court.

With regards to legal aid for private family law proceedings, we have made sure that such aid remains available for victims of domestic abuse. We have reviewed the arrangements for making legal aid available to victims of domestic abuse in private family cases, and we will announce further improvements shortly.

We have had a fantastic debate, with contributions from my hon. Friend the Member for Fareham, the hon. Member for Strangford, my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont)—who contributed to my belief that the Conservatives should look north of the border for sensible solutions on so many things, including family law—the hon. Member for Wrexham, my hon. Friends the Members for Henley (John Howell) and for Wells, and the hon. Member for Lanark and Hamilton East (Angela Crawley). I am hopeful that we can work across the House and beyond as we continue efforts to improve the family justice system.