Divorce, Dissolution and Separation Bill

Debate between Yasmin Qureshi and Ian C. Lucas

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th June 2019 Commons Chamber

[Yasmin Qureshi (Bolton South East) (Lab)]

This debate has seen considered and valuable contributions. There have been many points of agreement across the House—and obviously some differences.

I thank all Members who participated, starting with the hon. Member for Newton Abbot (Anne Marie Morris), who is not in her place. She talked about the importance of marriage while recognising the challenges, issues and realities when people get married and things go wrong. She referred to the 50:50 rule for dividing property, about which there is some misunderstanding. As I understand it, from the many years I studied family law, the 50:50 rule applies to people with long-lasting marriages—30 or 40 years—and maybe several children. Often with short marriages, the rule does not apply. The crux of her argument, however, was that marriage is important but that things can go wrong.

The hon. Member for Bath (Wera Hobhouse) talked about the importance of the Bill and why the law needs to change.

I thank the hon. Member for Congleton (Fiona Bruce), who earnestly talked about the importance and stability of marriage for people and children. I know she holds these views very dearly, as do many across the country and the House. I also thank the hon. Member for Strangford (Jim Shannon) for his many contributions in the form of interventions.

Finally, I cannot finish without mentioning the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, who, with all his different hats on, gave a very considered speech about why the Bill is necessary. He made the particularly important point that many people were having to exaggerate, lie or invent fault to be able to expedite a divorce. We should not be making our citizens do these things.

In an era when we better understand the complexities of human relationships and the freedom that people deserve to decide how they live their lives, it is clear to most of us that the old and outdated divorce rules need to change. That was crystallised and highlighted by the case of Owens v. Owens, to which the shadow Lord Chancellor and the Chair of the Select Committee referred. Mrs Owens asked for a decree nisi, which was not granted, even though the Supreme Court accepted that the marriage had irretrievably broken down. The law said that there had to be an attribution of fault to one of the parties, so the law as it stood did not allow the marriage to be finished. Subsequently, the then president of the family division, Sir James Munby, said that this aspect of law and procedure was based on

“hypocrisy and a lack of intellectual honesty”.

The Supreme Court also said that it was not for the judiciary or the courts to change the law but for Parliament. I am pleased that Parliament is debating this and that the law will be changed for the betterment of all.

As the Nuffield Foundation put it, the reliance on fault and blame as a key pillar of divorce law is

“at odds with the thrust of wider reforms in the family justice system, which have focussed on reducing conflict and promoting resolution”.

We understand that 1.7 million people currently use fault to get a divorce when fault is not the reality. Given that 90% of family lawyers represented by Resolution say that the current law makes it harder to reduce conflict between ex-partners and that 69% of the public are in favour of no-fault divorce, the time is right to change this archaic rule.

I would, however, like to raise some omissions from the Bill and to hear what the Lord Chancellor has to say. Divorce procedure is just one part of the wide tapestry of our legal system. As has been raised in debate with Ministers, this tapestry is fraying due to decisions made by their party over the past decade. The reforms we have discussed today are welcome attempts to reduce unnecessary conflict and prevent needless emotional stress for divorcing couples and their children, but in other areas of justice and family policy this does not seem to be an issue of concern for the Government.

The deep cuts to legal aid mean that the legal representation required to reach the right divorce settlement will be available only to those with the funds to pay for it. A lack of legal support makes it difficult for people to understand the intricacies of important changes such as these and therefore will reduce the positive impact of the no-fault divorce procedure, which we welcome today. Did the Lord Chancellor agree with the Law Society when it said the Government should, alongside these reforms, reintroduce legal aid for early legal advice to support divorcing couples and help them to reach the best possible settlements for themselves and their children?

[Ian C. Lucas]

I strongly support what my hon. Friend is saying to the Lord Chancellor. One of the major concerns I hear in my constituency surgeries is about individuals seeking advice concerning contact with children and matrimonial proceedings. It is a very emotive subject, as we heard earlier in the debate, and needs to be addressed.

[Yasmin Qureshi]

I thank my hon. Friend for that helpful intervention. I hope the Lord Chancellor was listening to that and to everything else we are saying on the Opposition Benches.

More could be done in the Bill to support the most-at-risk people seeking a divorce. The Bill does not remove the bar on petitioning for divorce in the first year of marriage, despite charities and campaigners pointing to the impact this will have on victims of domestic abuse. We know that big life events such as marriage or pregnancy are hotspots for abuse and controlling behaviour to begin or increase. That first year of marriage is for some not a honeymoon period but a nightmare. It is clear that in 2019 we should not be trapping people in potentially dangerous situations because of an outdated law that does not give people the agency to get themselves out. Can the Lord Chancellor explain the rationale for this omission?

Overall, we welcome the reform, but we urge the Government to put this progressive shift into the context of the wider changes required to our justice system. There is so much more to do to ensure that anyone going through a tough time, such as a divorce or other conflict, has a positive and fair experience while seeking justice. I hope that the Minister, when he responds, will deal with some of the questions we have raised. That said, this is a very welcome Bill, which is why the Opposition support it.

Family Justice Reform

Debate between Yasmin Qureshi and Ian C. Lucas

Wednesday 15th November 2017 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Ryan. I congratulate the hon. Member for Fareham (Suella Fernandes) on securing the debate. Before I became a Member of Parliament I was a practising barrister and dealt with cases in the family courts. Because family court proceedings are held in private, not much is known about their operation and decision making. Yet those courts make decisions affecting more than 200,000 families. I believe that the courts need to be opened up, and that that can be done without the identity of parties being disclosed. The expression “child A” or “family A” can be used to stop identification of parties. The concept of no-fault divorce should be looked at and implemented, as the current law effectively forces spouses to throw mud at each other, when the truth is probably that the marriage has just come to an end. Cost is another issue that adds to the worry, as many people who are separating will already face financial difficulties and challenges.

Another important aspect of family courts that has been alluded to is what happens when partners have separated, including questions about the enforceability of child arrangement orders. The courts make those orders to regulate the contact and residence of children, but, sadly, they are breached regularly. I remember distressed clients complaining about how their ex-partner would not turn up, would be very late, would make excuses for not allowing the child to be picked up, and would generally be manipulative. It caused a lot of frustration. The only legal solution was to go back to the court, but that meant spending more money, which, often, the clients did not have, and getting cases listed before courts, which would take months. They therefore lost valuable time with their children. The hon. Member for Wells (James Heappey) mentioned one of his constituents facing similar game-playing by the other parent. I agree with the hon. Member for Fareham that there should be a much quicker method to deal with people who manipulate the system.

When orders are being arranged, the judge could, in a very severe way, inform the parties of the consequences of non-compliance. We must also not forget about parenting orders for cohabiting families. The hon. Member for Strangford (Jim Shannon)—he is not in his place at the moment—spoke about the rise in the number of cohabiting families, and it is important to consider how to protect those families and the challenges that have arisen.

Another point about family courts often does not get mentioned—it has not been mentioned much in this debate, but it is important and I hope that the Minister will consider it. The president of the family division, Sir James Munby, recently said that too many children are being taken into care for wholly inadequate and poorly argued reasons. Again, from my experience, I tend to agree with him. Although it is inevitable that some children must be taken into care, there are too many such cases, and there seems to be an almost unseemly haste to take young babies away from their families—many people are waiting to adopt little babies, as opposed to toddlers or young children. Perhaps we should consider what assistance, advice and guidance can be provided to new mothers so that they can look after their children themselves, as opposed to social services getting involved and taking the children.

Child safety and protection are obviously paramount, and we heard about famous cases such as that of Baby P and other children. However, from my practical experience, and that of others who have spoken to me, I know that there are occasions when local authorities, social workers and other people do not make enough effort to work with families. Perhaps that is because it is more time consuming or resource intensive, but we should think about that because far too many children who go into care go into foster homes, and not many are being adopted, as they should be. Some children who go into foster care are with one family for one year, another family for two years, then another for one more year, which causes them a lot of instability. A lot of those children are affected by being moved around, so I urge local authorities—I know they are facing massive funding cuts—and the Ministry of Justice to consider incentivising social services in local authorities to work with families so that we can keep as many children as possible within the home, as opposed to shunting them around the care system.

There is some anecdotal evidence—I hope the Minister will consider this—that BME communities and working-class families have a higher incidence of children being taken away than the rest of the population. It is almost as if sometimes they are being judged on what an ideal, upper middle-class lifestyle might be like, and perhaps there should be more of a reality check about what happens in ordinary families. I also believe—this happens very infrequently—that judges should take it upon themselves to talk to children involved in these proceedings to get more information about what they feel about the reality of family life. That does not happen enough. CAFCASS officers, social services and other people should hold many more discussions with children about how they see the situation and what their experiences are.

The hon. Member for Fareham did not allude to the big elephant in the room—legal aid—although my hon. Friend the Member for Wrexham (Ian C. Lucas) did mention it. There has been a real cut in civil legal aid, especially in family courts, because the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished free early legal advice. Often lawyers were able to encourage clients to seek mediation and agree to arrangements, but that is not happening now because so many people are unrepresented. More people are now coming into the court system and clogging up court structures, and often district judges and legal advisers have to draft complex care orders, which is having an effect on the backlog of cases in court. It also means that unrepresented individuals often do not know the procedures and it takes much longer, so again, a backlog is forming in the courts.

When I sat on the Justice Committee in 2012, the fears about LASPO were raised, and it has been confirmed that, although there have been austerity cuts, in reality, no savings have been made because court time has increased, and dealing with those cases takes much longer.

[Ian C. Lucas]

My hon. Friend makes a strong point, and I have heard court staff say that courts are under increasing pressure. It is not really the role of judges to advise the parties; the judge is there to determine the case, but they are being placed in the difficult position of having to supplement that by advising the parties they are judging.

[Yasmin Qureshi]

That is absolutely right. The judge’s job is to adjudicate, but now legal advisers and judges have to take a proactive role in the legal processes. That causes a lot of difficulties for them, and it is clogging up a lot of court time. Cases are taking much longer to progress through the court than they would if we had a system in which people are represented, so many of the issues could be cut down and a debate held on the main features or issues of that case.

We were told that victims of domestic and child abuse would have access to free legal aid, but in reality that is not happening in the majority of cases because of the number of bureaucratic rules that people have to satisfy to apply for funding. One in four women suffer from domestic violence, and every week two women are killed by their current or former partners. One of the most distressing aspects is that victims of domestic violence can be cross-examined by their abusers. I cannot imagine how bad a situation that would be.

The Legal Aid Agency’s failure to apply exceptional case funding has caused major hardship. Many parents with significant learning disabilities cannot get legal aid and are therefore unable to protect their interests as well as those of their children. Will the Government consider the Bach Commission report and whether exceptional case funding could be established to help people who suffer from domestic violence? The Government suggested that 847 children and 4,888 young adults would be granted exceptional case funding, but between October 2013 and June 2015 only eight children and 28 young adults were granted legal aid. That is unacceptable, and I look forward to the Minister telling the House what action the Ministry of Justice will take to deal with that issue.

We must also address the ability of the Child Maintenance Service and the Child Support Agency to work efficiently and quickly to ensure fairness for all involved. In many instances child support arrangements are not working well, which causes difficulties for the parent who has responsibility for looking after the children. What action will the Minister’s Department take to ensure that those orders are working?

In conclusion, this has been a good debate and hon. Members have shared their experiences. I particularly thank the hon. Members for Berwickshire, Roxburgh and Selkirk (John Lamont) and for Lanark and Hamilton East (Angela Crawley), who have given us a bird’s eye view of Scottish law, and all hon. Members who spoke about cohabiting families and legal aid. I hope that the Minister will address some of our concerns.