The difference between the criminal court and the family court.
The legal system, explained: the Family Court
One of the branches of the justice system in England and Wales deals with disputes over marriage and children. These are the Family Court (for the majority of routine cases), and the Family Division of the High Court (for a few specific issues and more complex cases).
Here’s a brief outline of how the family courts work and what happens in them.
What the family courts decide
The Family Court and Family Division deal with all kinds of legal disputes to do with children and the breakdown of relationships.
Most seriously, the Family Court will deal with cases where the government (local councils, in practice) intervenes in a family to protect children from harm. That can lead to the children being taken into care and eventually adopted or placed with extended family.
Family lawyers sometimes refer to this as “public” family law, because it has to do with disputes between individuals and the state. In 2015 almost 15,000 such casesinvolving 42,000 children.
But the Family Court also deals with family disputes between individuals. Divorce is a classic example. Working out where children live after their parents split up, and other disputes having to do with children, is referred to as “private” family law(because it’s a dispute between two private individuals). There were 45,000 private family law cases concluded in 2015, involving 164,000 children.
Another side effect of the break-up of a relationship is the question of money. The Family Court can settle questions of who is entitled to what after a marriage or civil partnership ends.
Disputes over regular maintenance payments to help look after children can end up there as well—when the parent who’s being asked for money is a high earner, for example—but that’s rare. There’s a government Child Maintenance Serviceintended to handle most of those cases. The Family Court can order money to be paid by a parent to support their children, but in practice this usually happens when the dispute is about a lump sum rather than maintenance.
The Family Court also deals with the “vast majority” of orders designed to protect people against domestic violence, according to the Ministry of Justice. The court can issue a “non-molestation order” telling someone not to contact, harass, threaten or be violent to another person such as a former partner. Or it can make an “occupation order” preventing someone from, for example, living in or returning to the family home.
More complex family cases may end up in the Family Division of the High Court. It’s also the venue for some cases involving specific issues such as certain cases of international child abduction, forced marriage, and female genital mutilation.
The structure of the family courts
There used to be various different types of family courts for day-to-day cases, but officially there’s now a single entity just called the Family Court. You still seereferences to Family Proceedings Courts, for example, or going to the County Court—this reflects the system as it was before 2014.
Physically, the Family Court has a lot of different locations around England and Wales. This might be a building set aside for this court only, such as the East London Family Court. Or it can be part of a complex that houses different types of courts, such as Bath County Court and Family Court.
The President of the Family Division is also the overall Head of Family Justice—in charge of the system of family courts. Sir James Munby had that job until the middle of 2018 when Lord Justice McFarlane took the position.
Family judges
Judges of different ranks, from magistrates without legal qualifications to High Court judges, sit in the Family Court. They’re assigned cases based on what type of family dispute it is, and how complicated the dispute is.
Appeals against a decision of one judge will often go to a more senior judge within the Family Court. If the original judge was already quite senior, the appeal will have to be heard by the Family Division of the High Court, or even the Court of Appeal above that.
How the judges are addressed in court, and how they’re dressed, depends on their rank.
There are no juries in family courts.
Differences between the Family Court and other courts
The balance of probabilities over facts and evidence.
There are plenty of ways in which the Family Court is different from, say, the criminal courts. These are just two of the most significant.
First, any fact in dispute has to be proved on what’s known as the balance of probabilities. This means that, to be treated as having happened, any fact in dispute has to be proved to be more likely than not. It’s also referred to as the civil standard of proof—to distinguish it from the criminal standard of proof, in which a jury must be “sure” (or be “beyond reasonable doubt”) to convict somebody.
This difference means that sometimes the Family Court will decide, to take an extreme example, that somebody has killed their child even if a separate criminal trial for murder has resulted in an acquittal. If there were other children in that family, the Family Court may need to make a decision on what happens to them, and to do so would decide on the balance of probabilities whether the parent was responsible for the death.
Second, most hearings concerning matters to do with children are heard in private. Members of the press may attend most hearings, but there are restrictions on how much of what goes on they can report. Judgments in cases heard in private are often published, particularly when important or controversial, with the names of the people involved replaced by letters.
We need facts more than ever.
Right now, it’s difficult to know what or who to trust. Misinformation is spreading. Politics and the media are being pushed to the limit by advancements in technology and uncertainty about the future. We need facts more than ever.
We need to change how the family court is run, what changes does 2019 hold for family law? In this blog piece I take a look at some of the trends, shifts and changes that are set to have an impact on family law – for separating/divorcing couples and their families, as well as for family lawyers themselves.
Protections for domestic abuse victims
January 2019 has seen a new draft bill being placed before parliament on domestic violence being published Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019.
This draft bill provides for a long-awaited ban on alleged domestic abusers personally questioning their victim in the family courts. Instead, the court will be able to appoint a lawyer to put the questions to them. Judges will also have the power to allow victims to video record their evidence or cross-examination in advance, rather than having to give both live.
Hopefully parliamentary time will be given to considering the draft bill as a matter of urgency.
Court modernisation
It is understood that the government has invested about £1 billion in modernising the court system, with a focused move toward online services in a bid to reduce delays and cut costs.
Whilst modernising the courts is welcomed, there are concerns about the impact and deliverability of the reforms. MPs announced at the start of this year that they are to probe the access to justice implications of the modernisation programme. Issues such as the increasing use of digital and video technology and the closures of courts are to be looked at. The committee will also consider whether the MoJ and HMCTS have consulted effectively on the reforms, and maintained sufficient communication with judges, lawyers and the advice sector.
You can find information on how to submit written evidence to the committee here and a link to submit evidence here. The deadline is 11 March 2019.
Division of matrimonial assets
A private members’ bill was introduced in the House of Lords last year. The bill seeks to make substantial reforms in the law to the way that financial settlements are dealt with on divorce.
The three main provisions are:
For pre and post nuptial agreements to be treated as legally binding, provided that certain conditions are met.
That ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally and only depart from that if to do so would be fair having regard to specific circumstances.
For the duration of spousal maintenance to be limited to five years unless that would cause a spouse to suffer serious financial hardship.
It is understood that the main reasons for the proposed reforms is to make the law clearer and more certain. As it stands at the moment there is a wide range of discretion when determining how assets should be divided up following a marriage coming to an end. This can make it very difficult to know what the likely outcome may be if a case is taken to court which as a result can make it harder for the separating spouses to reach agreement.
However, discretion means that there is the scope for settlements to be tailor made depending on the specific circumstances of each case. Families are complex, it is therefore difficult to see how a one size fits all approach could work without causing unfair outcomes.
From my point of view what is clear is that a thorough review of the law by the Law Commission, with input from the public and the family law practitioners is necessary.
The bill is currently awaiting its second reading in the House of Commons. You can find the full details of the bill and follow its progress here.
No fault divorce
Will 2019 finally be the year we see an end to the blame game when it comes to divorce? The government announced at the end of 2018 that it is committed to helping couples separate more amicably
The government’s consultation includes consideration of:
Retaining the sole ground for divorce as the irretrievable breakdown of a marriage.
Removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
Introducing a new notification process where one, or possibly both spouses, can notify the court of the intention to divorce.
Removing the opportunity for the other spouse to contest the divorce application.
The government is due to provide its response to the consultation in March 2019.
Brexit
No one knows with any certainty as yet the impact Brexit will have on family law over the course of the next year. Here is a very brief summary of key points if we leave without having reached an agreement with the EU:
EU family law instruments based on the principle of mutual recognition will no longer apply cross-border between here and EU states.
In some areas of law, such as child abduction, the Hague Conventions will continue to apply between us and EU states.
In some cases, bilateral treaties and conventions pre-dating EU membership may exist between us and EU member states.
Our team will continue to explore these issues on our advice facebook group, covering topics that matter to individuals and their families
