Jon Armstrong continues his review of how things have changed in family law practice over the past 30 years:
Unmarried couples
When I began working a trainee solicitor in the family department in January 1996, unmarried couples who had a dispute about their property had to apply to the court for an order for sale under the Law of Property Act 1925. This was replaced by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
Unfortunately TOLATA hasn’t made things better. The law that applies to unmarried couples still remains hopelessly inadequate, frequently resulting in outcomes that can be unfair or that don’t meet the parties’ needs or both. The government has indicated that it intends to review the existing law, with a view to reforming it. Labour’s manifesto in 2024 included a commitment to review cohabitation law. This has now been combined with an review of divorce finance law as well.
The need for reform of cohabitation law was being pushed by the Labour shadow attorney general, Emily Thornberry MP, but when Labour came to power in 2024, she was not appointed as attorney general in Keir Starmer’s cabinet. In her absence from government, it has been slow to get the review underway.
A decision will need to be made as to whether unmarried couples should have better rights than they currently do or the same rights as married couples. My view is that it should be the latter. Sadly, progress on this possible reform is proceeding at a glacial pace.
Thirty years ago, where parents could not agree arrangements for their children, such as where they lived or how often they say the other parent, the only remaining option was to apply to the court for a residence order or a contact order.
Practice varied around the country, but in my local court, there were Conciliation and Directions Appointments, where a court welfare officer (initially an employee of the court welfare service, later separated off from the Probation Service and formed into a new Children and Family Court Advisory and Support Service or CAFCASS in 2001.
The new and very lengthy name demonstrated regrettably bureaucratic verbal diarrhoea. The name has actually changed over the years. It used to be the Children and Family Court Advisory and Support Service, but after the creation of the Family Court it became the, er, Children and Family Court Advisory and Support Service. Now that may look the same to you, but it isn’t. It’s original name was the Children and Family [pause for a fraction of a second here) Court Advisory and Support Service, but later became the Children and Family Court [pause for a moment here] Advisory and Support Service. I hope that’s clear.
The conciliator helped the parties discuss their concerns and to agree arrangements, with their solicitors sitting in on the meeting so that they could give their client advice when needed.
In most cases an agreement could be reached and the court wouldn’t need to make an order, and would adjourn the application for months. If the agreement worked, the case was dismissed automatically after six months. If it failed, one party could reinstate the application before the six month period ended or start a new application thereafter. It worked well, especially in contact disputes. Inevitably, therefore, it was abolished.
In 2014, contact orders and residence orders were replaced by applications to the new Family Court for child arrangements orders which determine with which parent the children should live with or how they spend time or otherwise have contact with the other parents.
To all intents and purposes, there is no difference between the old residence and contact orders and the new child arrangements order. I struggle even now to understand what the point was of the change. However, at the same time the court introduced a presumption that both parents would be involved in children’s lives unless there was compelling reason why they should not.
That presumption introduced a statutory basis for the court’s existing approach. However, it has proved controversial in the years since and has been blamed for cases where the court has made an order for contact where it should not have. There is at least one particularly hideous example of such an order which was made shortly after the law was introduced. The government have therefore announced that the presumption will be abolished. I think that it is a mistake.
Children cases have become harder. In my youth, the solution to cases was often a matter of the court applying common sense to the case. Early robust and non-nonsense decisions by judges were common place (especially in my local court). Now the court is more careful. Safeguarding letters have to be provided by Cafcass before the court can make an order. Allegations of domestic violence or abuse by one parent towards the other are treated far more seriously. The old system of conciliation and directions appointments would not have worked in that environment.
Magistrates are much more likely to deal with all child dispute cases; the days when they tended to only deal with the children of unmarried couples is long over.
Domestic Violence and Abuse
Shortly after I started as a family law user in 1996, the law was changed to replace the old domestic violence injunctions with Non-Molestation Orders (NMOs) and Occupation Orders (OOs).
These remain in place today, although there have been other changes. There is now a statutory definition of domestic violence and abuse set out in section 1 Domestic Abuse Act 2021:
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse;
(e) psychological, emotional or other abuse
The court’s approach has therefore changed. In 1996, Colchester did things its own way. The resident circuit judge, not district judges, dealt with application for NMOs and OOs. He would always refuse to make a without notice NMO – without exception. They were always listed on two days’ notice and with the respondent being served with notice of the hearing. If he judge twigged that there were children, he would also usually make a contact order there and then, as he believed that many incidents of abuse stemmed from arguments about contact where the mother had refused to allow it and there was then an unpleasant incident between the parties on the doorstep, or that a lack of contact with the children would lead to further incidents.
It is tempting to think wistfully of the days when we received such robust decisions. Now the processes are mandatory and the court is not allowed to make such decisions without a proper consideration of the evidence and a safeguarding letter from Cafcass, at the very least. The new approach is more appropriate – but it is also horribly slow. The Children Act 1989 section 1 (2) says “In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.” The presumption against delay seems entirely hollow when the simplest of cases can take months or even years to be resolved.
Legal aid
In 1996, a huge part of my case load was legally aided. Legal aid was available to far more people than it is now and most family solicitors did legal aid work.
If your income and assets were low enough, and provided that there were merits to your case, you qualified for legal aid. If you were in receipt of income support, you automatically qualified. For everyone else, the financial threshold for eligibility was far lower in real terms than they are today.
There was Green Form (more formally known as Legal Advice and Assistance). Solicitors could grant this to the clients on the spot, by completing a green form (hence the name). It covered two hours of initial advice and work (or three hours if we drafted a divorce petition).
If the parties needed to go to court, we could seek a legal aid certificate to cover the cost. In 1996, I remember my old firm’s partners telling me that during the recession of the early nineties, they were reliant on the arrival of the monthly legal aid cheque to pay the wage bill.
Never generous, by 1996, the payment rates were increasingly unprofitable. They became massively eroded in real terms. More and more law firms stopped doing legal aid work as they could not cover their costs when doing so. The payments rate barely changed over the years. When I stopped doing legal aid work in about 2004, the legal aid rate was about £64 per hour, about half my then hourly rate. Our privately paying clients were subsiding the legal aid clients. Unsurprisingly my partners wanted me to concentrate on better paid private work.
Legal aid was massively cut back in 2013 by the coalition government by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Thereafter legal aid was only available to people who were victims of domestic violence and abuse (apart from public law care work, where the legal aid remained non-means tested because, I think, the vast majority of parents who face the possibility of their children being taken it o career are almost always on very low incomes already and means testing would be a waste of time and money).
This can come as an unpleasant surprise to many people on low incomes who assume that they will get legal aid to cover the costs of their dispute with their ex. I have to explain to them that as they are not a victim of domestic violence or abuse, they just do not qualify and will either have to pay privately or represent themselves. I have had a number of callers who struggle to believe this and who tell me that they will try another solicitor and see if they can get legal aid. I have to point out to them that they will be told exactly the same by another solicitor.
Even if they are eligible, they will difficulty finding a solicitor who undertakes legal aid work in private disputes about money or children. There are currently no solicitors in Colchester who undertake legal aid work. I am aware of one in Chelmsford, who is apparently overwhelmed with legal aid cases and often cannot take on new cases.
The Law Society and the Bar Council continue to campaign for legal aid to be restored. Regrettably, I think that they are railing against the dying of the light. That ship has sailed. This country has the most left wing government since the 1970’s and they have shown no inclination to increase the scope and eligibility for legal aid cases. If they won’t do it, no other government is likely to.
The future
So, how might family law change in the foreseeable future?
AI is now with us. So far, I suspect that most of us have barely used it. I recently used AI to do some legal research for me on a procedural point. It told me the answer and cited the relevant procedural rule. The outcome sounded correct to me, but I checked my copy of the rules to make sure. The rule did not say what AI had told me.
Checking research done by AI is essential as at least two lawyers have found to their cost in recent months.
I am told that submissions to court prepared by litigants in person are now frequently generated by AI, and often contain hallucinations; the AI starts making up the law. It is important that solicitors check the caselaw being cited by litigants in person as may have been generated by AI and may contain references to judgments that simply do not exist.
We are told that AI will be able to handle routine correspondence for us. It will summarise and analyse evidence for us. It could draft documentation. It may be one day be able to provide advice to people who are divorcing.
I used AI during the drafting of this blog to get it to correct the numerous typos that my inexpert typing usually produces. It did more than just correct it, it also decided to delete large chunks of text (including most of the above text about AI not being very good yet, which was slightly concerning).
My limited experience of it so far is that it is far from perfect, but no doubt it will improve and solicitors will need to understand how to use it.
There will inevitably be changes to the existing law. The government has already announced that it intends to abolish the presumption of parental involvement in children cases.
The immediate future brings the prospect of a new procedure for children disputes initially called “Pathfinder” and recently renamed by the government as “Child Focused Courts”. The low value financial remedy pilot may be a success and be rolled out nationwide. There may be new business models of providing family law. The one lawyer, two client model may become more commonplace, although my experience of it so far is that is rarely appropriate due to the risk of a conflict of interest.
In the longer term, there may be a review of the law that applies to cohabitation. The government has promised that it will review the law which is hopelessly inadequate . The review will also be going to consider whether divorce financial remedy law needs to be changed.
These changes will be designed to improve the law and its practice. We will have to see whether they do.
18 April 2026
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