Bloomsbury Professional Family Law Conference Review

The first Bloomsbury Professional Family Law Conference was held in London on 16 May. The opening address was given by the incoming President of the Family Division, Sir Andrew McFarlane, a founding editor of the Encyclopaedia of Children Law and Practice, now co-edited with Madeleine Reardon, 1 King’s Bench Walk. He outlined some pressing issues in family justice: digitisation of the courts; closure of court buildings and access to justice; transparency; and the challenges of the loss of legal aid funding, Brexit, and the Care Crisis Review.

Sir Andrew explained that the Court and Tribunals Service was well advanced with the ‘modernisation’ programme, which includes the welcome move toward paperless courts. However, he noted that caution was needed in considering the extension of virtual hearings into family justice and the ongoing closures of local courts. He understood that the current President, Sir James Munby, was intending to issue some further guidance on transparency shortly, as the next steps from the practice guidance issued to the judiciary in 2014. Developments had however been achieved through the work of The Transparency Project and as reflected in the recent Nicholas Wall Memorial Lecture, given by Lady Hale, on 10 May. Looking at other issues he cited the work of the Legal Aid Practitioners’ Group and the Family Rights Group as important in drawing attention to the impact of the loss of legal aid in private law and the increase in applications in public law, respectively. He concluded his remarks by observing that, despite these problems, those in the room were there because they see family work as the most important field of legal endeavour.

The second speaker was William Tyler QC, The 36 Group, who discussed recent case law and hot topics such as appeals timescales, relocation, shared care, fact-finding, McKenzie Friends, the controversial Re M contact case, and Practice Direction 27A on bundles. He also alerted the audience to forthcoming research on settlement conferences, the Law Commission recommendations on surrogacy reform, and the imminent Cafcass high-conflict pathways procedures. Lucy Reed, St John’s Chambers, then spoke on ‘Transparency – why it matters; what it means’. Lucy is a co-author of the newly-published book, Transparency in the Family Courts: Publicity and Privacy in Practice. A transcript of her talk is available on The Transparency Project website, 19 May 2018. Madeleine Reardon’s presentation asked the question: ‘When will the court consider restricting or terminating contact?’, highlighting some inconsistencies in approach according to parental status through analysis of judgments and the use of fictional case studies.

Alexander Laing, Coram Chambers, then spoke about the potential risks and difficulties in conducting ‘achieving best interests’ (ABE) interviews and more widely in children giving evidence in family proceedings. Alex and Bianca Jackson are currently writing a new book, Public Children Law: Contemporary Issues. The final speaker of the morning was David Burrows, author of the Bloomsbury Family Law briefings and the forthcoming book, Privilege, Privacy and Confidentiality in Family Proceedings. David’s topic was the participation of vulnerable individuals in family proceedings, one that was mentioned by a number of speakers as requiring urgent reform of the procedure rules and practice direction.

There was a short panel discussion in which the speakers were joined by Sharan Bhachu and Sian Gough, 42 Bedford Row, in which training in respect of vulnerable witnesses in family courts was raised as a priority.

This packed half-day programme on topics relating to children was followed by another in the afternoon about financial remedies in family law. Peter Duckworth, of 29 Bedford Row chambers and author of Duckworth’s Matrimonial Property and Finance, discussed the effect of separation agreements, and how the courts had changed their attitude towards them over the years. William Massey, head of the family team at Farrer & Co, discussed pre-marital wealth and sharing in divorce claims, comparing the different approach of certain judges in some recent cases and the assessment of pre- and post-marital gains in the value of marital and non-marital property. Charles Hale QC, of 4PB chambers, considered current international aspects of family finance by reference to a number of recent cases, including questions of jurisdiction, disclosure and the enforceability of pre-nups. Edward Boydell of Pump Court chambers talked about setting aside financial orders and agreements on grounds of dishonesty or material non-disclosure, bad legal advice, or a significant change in circumstances. Finally Katherine Kelsey, of 1KBW chambers, speaking on the topic of sharing and matrimonial property, asked rather intriguingly: ‘What does a white leopard look like?’ – a reference to something Mostyn J once said about the expected rarity of an award granting a party a share in non-matrimonial property (see JL v SL [2015] EWHC 360 (Fam) at [22]).

By dividing the conference into two apparently self-contained sessions, one dealing with children and the other with matrimonial assets, the organisers gave delegates the flexible choice of being able to opt for one or the other, or both. But as David Burrows pointed out, issues relating to evidence are relevant across the whole spectrum of cases (as was the future President’s keynote address). The organisers would welcome views on what to include in next year’s conference. One suggestion is that end of life cases (such as Alfie Evans and Charlie Gard in the family courts and Paul Briggs in the Court of Protection) and the public understanding of issues around medical consent would be a good topic.

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