In Wyatt v Vince, the Supreme Court was called upon to consider the correct interpretation of rule 4.4 of the Family Procedure Rules 2010, which governs the court’s power to strike out a statement of case. The Court of Appeal’s 2013 decision, from which the wife appealed, was the first reported decision on the interpretation of rule 4.4. This case commentary examines the Supreme Court’s unanimous judgment in detail. Whilst the judicial interpretation of rule 4.4 resolves the matter before the court, Lord Wilson’s judgment contains critical analysis of the nature of ‘needs’ and ‘contributions’ within the Matrimonial Causes Act 1973, section 25 exercise, both independently and as they relate to delay. The court responds to the ‘forensic delay’ on the facts by narrowing its construction of ‘needs’ to those generated by the relationship and treating delay as a countervailing consideration to weigh against ‘contributions.’ The former reasoning raises the possibility of a more coherent, interpersonal theoretical basis for financial provision upon relationship breakdown more generally. The latter arguably constructs delay as a substantive consideration, which strengthens the social obligation basis for financial provision.
This paper is published in (2015) 27: 2 Child and Family Law Quarterly 195-208, and also available here.
(co-authored with Naomi Webber, University of Oxford)
Non-lawyers implement the law on permanent exclusion, particularly school management teams, with the support and guidance of local authority (LA) officers.
In this review, we evaluate the contents of, and relationship between law and practice to examine to what extent they are coherent. Divergence between law and practice is not of itself a basis for criticising the actions of non-lawyers, but instead suggests that the law might not be fit for purpose. The law should support ‘best practices’ and restrain practice that is not in the “best interests” of either the individual child at risk of exclusion and/or of other children and staff in the school.
Our discussion focuses on recent research and secondary literature, as well as our own scoping survey of permanent exclusion in schools across four LAs in the same Department for Education (DfE) Statistical First Release (SFR) region. The second section outlines the current law, presents statistical changes in the rate of exclusions and appeals lodged over time and analyses how reforms to the law and legal framework may have affected the statistics. The third section evaluates the values that underpin the legal framework, particularly autonomy, equality, “best interests”, and participation and procedural rights. The fourth section examines current knowledge of the way in which the law is understood by various groups of non-lawyers in the exclusion process. This section also draws on findings from our scoping survey, conducted between July and September 2014. Our scoping survey highlights the potential significance of school and LA culture within this legal discretionary framework in determining the likelihood that a pupil will be excluded. In particular, analysis of individual schools’ responses regarding exclusions against publicly available data on their pupil-level risk factors and indicators of school culture suggest that school culture and disposition toward the governing law has a role to play in determining the likelihood that a pupil will be excluded. This role has not been examined to date, and our scoping survey results reveal it is a complex one, which may also be interwoven with the LA culture and disposition towards the governing law. The work of LA inclusion and exclusion officers is central to this latter issue. Finally, we highlight a number of more discrete matters for further research.
Note: Our review has been updated to include discussion of reforms introduced by the DfE’s 2015 statutory guidance on exclusion.
This paper is published by the University of Oxford (2015), and also available here.
Here are a couple of moot questions I set for inter-collegiate moots. The first, here, is on tort law and administrative law; the second, here, is on contract law and trusts law (though concerns issues with which family lawyers would also be familiar).
The High Court’s decision in S v S  EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators’ (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. The significance of the decision extends beyond the case itself. Sir James Munby P’s judgment is important in four respects: first, he guides courts as to the process to adopt when considering applications made in the context of arbitral awards; second, he makes critical suggestions for future procedural innovations and rule changes; third, he directs courts as to how to weigh the substantive content of arbitral awards against section 25 of the Matrimonial Causes Act 1973 when hearing applications for consent orders and attempts to resile from the arbitral award; fourth, he comments on autonomy as the underlying theoretical basis for this substantive approach to arbitral awards.
This paper is published in (2015) 37 Journal of Social Welfare and Family Law 99-101, and available here.
Setting the record straight: family law arbitration is not binding
Dennis Sheridan’s article (13 March) on family law arbitration sets out the key benefits of the new IFLA scheme but risks being dangerously misleading in one respect, namely that ‘awards’ made under the scheme are ‘final and binding’. More worryingly, he makes this claim in relating what an appointed IFLA scheme arbitrator said to clients in the early stages of proceedings.
Just because Article 13.3 of the IFLA scheme Rules describes the ‘award’ as ‘final and binding’ subject to limited grounds of challenge and appeal, does not make it so. Indeed, Article 13.4 of the Rules recognises that it may be necessary for the parties to apply to the courts to get an order in the same or similar terms as the award/part thereof.
It is technically incorrect to say that these ‘awards’ are binding. Trite as it is, jurisdiction to make final financial awards is the court’s alone. Nuptial agreements are not binding, and arbitration is not a special case. Section 81(1)(a) of the Arbitration Act 1996 makes clear that the court’s jurisdiction is unaffected here and s25 of the Matrimonial Causes Act 1973 applies. Even if arbitrated awards were treated as akin to s34(1) MCA 1973 maintenance agreements, so as to withstand s81(1)(a) AA 1996, s81(1)(c) entitles a court to refuse to recognise and/or enforce an ‘award’ on public policy grounds. Any case in which a judge would reach a different result under s25 than under the ‘award’ should satisfy s81(1)(c).
Second, even if a judge would be unlikely to override an arbitrated ‘award’, it is misleading to describe that factual reality with the legal terminology of bindingness. We do not pretend that the agreement that forms the basis of a Consent Order is binding before the order is made, so why would we do so for arbitrated ‘awards’? Talking about ‘awards’ that are unlikely to be overridden – ‘as good as binding’? – as ‘binding’ is liable to confuse the public. Why risk litigants misunderstanding their own legal right to apply to court for a binding order? Further, religiously-based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals’ work? The current law is based on the concern that only the court can sufficiently protect the parties’ interests in these disputes, hence only it can make binding decisions. If we no longer think this is the case, we need to have that debate, not pretend we have already had it.
Family law arbitration may have many benefits for the right type of parties in the right type of dispute. But a ‘final and binding’ decision is not one of them.
In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. Given that lawyer-led negotiations remain the most common form of out-of-court resolution, however, family arbitration’s impact may not be numerically significant. But family arbitration may be much more important in normative terms. Together with the transformation in approach to nuptial agreements, we may soon reach the position where it is no longer accurate to say that we are bargaining in the shadow of the default regime – the factual default of private ordering may become the autonomy-based normative default. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.
This paper is published in (2013) 35: 1 Journal of Social Welfare and Family Law 115-138, and available here.
This article aims to reinvigorate the debate over the nature and value of the claim that children have children’s rights. Whilst the language of rights and children’s rights continues to be widely employed, and even relied upon, in many situations involving the legal regulation of children we lack strong child-centred evidence that it is better to regulate children through the lens of children’s rights, rather than their ‘best interests’ or in terms of duties owed to them.
My argument proceeds in four stages. Firstly, I distinguish between rights for children and children’s rights. Understood in the sense of fundamental human rights, children are plainly rights-holders. The critical debate relates to children’s rights. Secondly, I argue that the expressive and procedural reasons for affirming that children hold children’s rights are contingent upon improved outcomes. Thirdly, I contend that we do not currently have a child-centred theory of children’s rights that improves, or increases the likelihood of improved outcomes in legal practice. This is not a claim that children do not have children’s rights. My argument undermines the current potential of both individual children’s rights and a rights-based framework of reasoning to improve outcomes for children.
Finally, I argue that without such a theory we currently have no good evidence that it benefits children to think of them in terms of children’s rights in law. This is an optimistic conclusion as it suggests that with greater attention on making decision-making truly child-centred, or explicitly recognizing the inability to do so, the purposes for which we want to believe that children have children’s rights might be better achieved than they are at present.
This paper is published in (2013) 21 International Journal of Children’s Rights 177-208, and available here.
This article explores the neglected issue of the over-representation in the child protection system of children from ethnic, cultural, religious, racial, and linguistic minorities. It focuses on the accommodation of children’s diverse backgrounds within the s31(2) threshold and s1 “best interests” stages of intervention under the Children Act 1989. Firstly, it introduces the ethnic child protection penalty as a new tool for capturing the complex nature of over-representation of these children. Secondly, it proposes a framework for understanding the judicial approach in higher court decisions on the current extent and nature of accommodation. Thirdly, it employs the penalty concept to help explain why case law analysis reveals difficulties with the current factor-based approach, whereas empirical research suggests generally satisfactory accommodation in practice. It concludes by proposing a contextualised framework for decision-making in relation to child protection.
The paper is published in (2014) 63 Studies in Law, Politics, and Society 43-87, and available here.
To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations. My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as “Family Law” obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens. I argue that the persuasive force of the focus on an individual’s responsibility for another’s financial need has obscured the reality of the state’s obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?
This paper is published in (2008) 22 International Journal of Law, Policy, and the Family 61-90, and also available here.
In this article, the author uses Alberta legislation and case law to test two common perceptions held in relation to the historical treatment of children’s (legal) status in Canada: first, that legal regulation oscillates between welfare- and rights-oriented perspectives; second, that the same uncertainty in approach applies in relation to all regulation contexts, including child welfare and youth justice. These perceptions are often used as the baseline of analysis from one explores (any number of) recent developments in Canada, federally or provincially. Yet, examination of the Albertan experience calls into question the accuracy of this view of the shifting approach to the legal regulation of children’s status.
Using definitive cases from the Alberta courts, the author argues that neither of these perceptions accurately reflects the narrative of children’s status in Alberta. The article reveals the greater complexity of the changing approach to legal regulation of children’s lives. In addition, the article suggests that the nature of the uncertainty and ambivalence evidenced in court decisions and legislative reforms is context-dependent, but ultimately driven by tensions inherent within the modern conception of childhood. Consideration of the Albertan experience is particularly revealing because it was the Alberta courts that both introduced the concept of the “mature minor” into Canadian common law in the mid-1980s and then determined that child welfare legislation superseded the child’s common law status as decision-maker.
This paper is published in (2007) 23(2) Canadian Journal of Family Law 159, and available here.