“Hello, can you hear me?” – video-witnessing of wills to be made legal in England and Wales
I recently attended the conference “Culture, Dispute Resolution and the Modernised Family” organised by the International Centre for Family Law, Policy and Practice (‘the Centre’). The triennial conference was a truly international event, with 31 jurisdictions represented in total.
The impressive line-up of speakers, which included both academics and practitioners as well as representatives from many other disciplines from all corners of the globe, discussed the key challenges that face modern families and indeed family law. There is a lot to be said for learning from the examples of foreign jurisdictions, however it became clear that many issues, such as relocation and abduction, are global and a common approach may be beneficial to all. In this blog, I look at some of the themes discussed and the key points and calls for reform arising from the discussions.
At a time where marriage rates are decreasing and the number of unmarried cohabitants is increasing, speakers expressed both surprise and disappointment that cohabitation law had failed to develop.
Dr Frances Burton (co-director of the Centre) suggested that we need to address whether there is still good reason for treating married couples and cohabitants differently. While there may well be, she thought that the current position where we have no system for cohabitants and a clear system for married couples is neither suitable nor fair.
Professor Wendy Schrama, from the Netherlands, agreed and called for a collective focus on ‘relationship’ law which provides cohabiting couples the option to opt-out. In contrast, Australian attendees suggested that an opt-in scheme would respect the autonomy of couples who had chosen not to marry.
The speakers agreed that where many couples still wrongly believe in the concept of a common law spouse, it was essential to ensure that couples are made aware of any reforms and educated on the options available to them.
We heard from co-director of the Centre, Professor Marilyn Freeman, whose research found that the effects of abduction are sometimes long lasting and had no time limit. Professor Freeman highlighted the fact that we tend to focus our attention on those who are moved (who have been abducted i.e. removed or retained) and often forget that those who are returned following the abduction also need support. Speakers were unanimous in agreeing that the abduction or return of a child is not the end of the story.
Professor Freeman’s research demonstrates that the return of the child can be as upsetting and stressful as the original abduction and a lack of post-return support impacts the child. She called for abduction support services to be made available to both children who are returned and children who are not and for training programmes to educate local authorities, schools and the judiciary on the impacts of abduction.
Speakers were unanimous in their calls for reform of ‘leave to remove’ or ‘relocation’ law. However, debate focussed on the use of presumptions versus the use of welfare analysis in each case.
A lawyer from New Zealand argued that it was necessary to sacrifice predictability in order to achieve the best outcome in each case based on a welfare analysis. In contrast, a Canadian lawyer argued that the pure best interests approach increased cost, discouraged settlement and heightened conflict.
The use of presumptions, such as presumptions against interim relocation, unilateral relocation and moving away from shared care arrangements were discussed. Speakers also agreed that it was important that practitioners, including judges, must not view presumptions as rules and protect the possibility of a rebuttal.
Voice of the child
There was a shared concern amongst the UK attendees that judges were not trained to talk to children and should be wary of their role and not slip into the habit of evidence gathering. In contrast, conference attendees from New Zealand, Canada, Israel and the US explained that in their respective jurisdictions it was very common for the judge to talk to the child.
An Israeli lawyer explained that judges would not report exactly what the child had said but would give the parties an indication of the issues. They found that this commonly focussed the parents on the real issues and gave all parties a key insight into the child’s views and the impact proceedings had on them.
It was also felt that there was increased scope for mediators to hear from child directly. Those in favour exercised caution to avoid placing undue pressure on the child but shared their experiences of this helping parties to reach a solution.
With the introduction of same sex marriage and surrogacy arrangements extending the definition of the ‘family dynamic’, the speakers agreed that it was no longer satisfactory to restrict parenthood to just two people.
Two models were proposed to analyse parenthood. The function based model (based on factors such as residence, time, care and financial support) and the consent based model (either consent to the original relationship with the child or specific consent to the status as a parent).
Dr Fenton-Glynn suggested that we first ask why we want to recognise an extra parent. If it is for the child’s benefit, reform should reduce the power of parental consent and focus on function. If, however, it is to recognise intention then reform should focus on the intention, consent and agreement of the adults involved.
Although all attendees agreed with the need for reform, it was suggested that any proposals for reform should not forget to address how issues such as relocation and contact are dealt with on the breakdown of relationships, issues which already invite difficulty when there are just two parents.
It was also suggested that the law in England and Wales’ requirement to register a legal gender was archaic. As it stands, a parent must declare on their child’s birth certificate that they are either the mother or the father of the child whereas speakers highlighted the example set by Australia where parents are able to declare themselves as ‘parent one’ or ‘parent two’.
The repetition of issues experienced across different jurisdictions and different cultures demonstrates clearly that modern family life is not bound by borders. The issues facing many families today are global and it is essential that family law continues to learn and evolve to mirror this reality.
The conference demonstrated that there is huge scope for reform to continue to develop family law both domestically (by drawing on the lessons learned in other jurisdictions) and internationally (by working with other jurisdictions to benefit families in the UK).
The Centre’s drafting committee met at the end of the conference to consider any conclusions and resolutions which may emanate from the conference sessions. They will publish the resulting document on their website and in their journal, International Family Law, Policy and Practice – watch this space!
Should you have any questions or be affected by the issues covered in this blog, please contact Tom Beak or a member of our family team.
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