Dr. Samantha Davey, Lecturer in Law at the University of Essex, presented a paper titled ‘Grandparent Act or granny “annex”? Waiting for the Government?’ at the Family Law Reform Now conference, hosted by Birmingham Law School in September 2021. The event was organised in collaboration with the Law Commission and conference proposals will be published in a book as part of an initiative to feed into for the Commission’s 14th Programme of Law Reform.

This post offers a brief outline of Dr. Davey’s chapter.

The 21st century has been characterised by systematic social changes to the family unit and legal reforms aimed at regulating and protecting those within it. Many of these shifts in ‘familial landscape’ would have appeared ‘radical’ at the start of the 20th century. Such changes include recognition of and protection from domestic abuse, increasing emphasis on the need to place equal value upon the gender roles of men and women within the context of child welfare, especially in the wake of COVID-19.

Most of this reform has centred around the ‘nuclear’ family, however, rather than the extended family such as grandparents. This is even though grandparents have increasingly had a prominent role in 21st century family life due to longer lifespans, working mothers and as the providers of moral and practical support in single-parent families. Grandparents can thus be viewed either as ‘replacement’ figures for parents or as a valuable form of support for parents and/or children.

There has been conversation, from the academic community, non-governmental organisations and successive governments over the last decade, concerning the role of grandparents in children’s lives. Such discussion includes consideration of whether there is the need for improved protection of the grandchild-grandparent relationship via legislative reform or ‘soft law’ guidance.

Such academic excavation into the array of options has included the consideration of a legal presumption in favour of contact, the removal of a leave requirement and greater ease in obtaining legal funding and financial support (the latter being appropriate where grandparents become carers for children, with or without the explicit support of Children’s Services and/or approval of birth parents).

Dr. Davey’s chapter explores the matter in a more comprehensive manner and considers whether it is time for legal reform to reflect the diversity in family units, specifically the importance of the role of grandparents, via a ‘Grandparent’ Act, substantial reform to the public and private law regimes provided within the Children Act 1989 or an amendment or ‘granny annex’ which reflects greater ‘inclusivity’ of extended family members, namely grandparents.

Dr. Davey proposes that it is time to acknowledge the importance of the role of grandparents (and other kinship carers) and consider the ways in which the grandparent-grandchild relationship, in its myriad of forms, may be best protected via legal reform.

The chapter takes take a ‘holistic’ approach covering both private and public law matters and both procedural and substantive matters, with a focus on the grandparent-grandchild relationship, rather than the rights of grandparents per se.

Greater protection can be provided to grandparents and grandchildren via the development of an ‘inclusive’ legal framework within the Children Act 1989 which modifies the language of ‘decision-making’ (including the welfare checklist) and substantive orders (such as a parental responsibility order).

Dr Samantha Davey, Lecturer in Law, University of Essex

Dr Samantha Davey has recently published a book with Hart, entitled ‘A Failure of Proportion: Non-Consensual Adoption in England and Wales’. This book is the result of PhD research which was funded by the Arts and Humanities Research Council. It explored the topic of adoption – specifically the issue of adoption without parental consent.

The central question Samantha sets out to address in her book, is as follows: in what circumstances is it proportionate to remove children from their parents into care and place them for adoption?

In England and Wales, and most other jurisdictions, adoptions are final and irrevocable. Adoption, in these circumstances, is non-consensual, signals not only the end of the legal relationship between children and parents but the end of familial relationships. Once an adoption is finalised, it is very rare for it to be revoked and unusual for direct contact to take place between children and their parents.

Dr Davey’s book explores an area of law which has sparked considerable debate amongst academics, practitioners and the judiciary nationally and internationally. The emphasis of her book is on the circumstances in which non-consensual adoption may be regarded as a proportionate measure and when less severe forms of intervention, such as long-term foster care or kinship care, may also meet children’s needs while providing protection to children’s rights under the European Convention on Human Rights.

The book builds on existing literature on adoption law but takes the discussion in new directions, placing an emphasis on the need to closely scrutinise children’s and parents’ rights at all stages of the adoption process. A unique feature of this book is its emphasis on routinely incorporating key provisions from the United Nations Convention on the Rights of the Child into analysis when determining whether an adoption order is a proportionate measure.

Breaking up is hard to do and current laws in the UK and Wales can make it a lot harder. Dr. Samantha Davey, Lecturer in Law at the University of Essex, explains why divorce law is ready for reform.

Divorce law in England and Wales has been discussed, dissected and been the subject of dismay for decades. Many practitioners and academics alike take issue with a fault-based approach to divorce because it is seen as out of date and unnecessarily cumbersome. Under the Matrimonial Causes Act 1973, there is one ground for divorce, namely that the couple’s marriage has irretrievably broken down. In order to establish this, there is a need to demonstrate that one of the following reasons exists: adultery; unreasonable behaviour; two years separation with consent; two years separation with no consent (desertion); or five years separation.

Aside from encouraging divorcing couples to play the blame game in divorce papers, which only serves to encourage conflict, there are two other main difficulties with these reasons for divorce. Couples’ relationships may break down for reasons other than adultery and unreasonable behaviour. Couples may grow apart or may decide that they wish to go their separate ways. Such couples may prefer to do so without assigning blame to one party but may not wish to wait two years before they divorce. The current procedure requires one party to seek to divorce another and demonstrate some type of fault on the part of the other party.

As a consequence, couples who may have ended their relationship amicably, sometimes feel forced to strain the ground of ‘unreasonable behaviour’ (e.g. domestic abuse, social isolation or debt) to find a reason for a speedy divorce or, as an alternative, wait two years before divorcing. Meanwhile, the spouses may form new relationships and may wish to move on with their lives.

Another issue is that if one party contests the divorce, this may delay the divorce unnecessarily. In practice, this is rare, but it happened in the case of Owens v Owens [2018] UKSC 41 which highlighted how out-of-date and potentially absurd the existing law on divorce is. In this case, Mrs Owens sought a divorce on the basis of her husband’s unreasonable behaviour.  Mr Owens contested the divorce and the judge who assessed the divorce application determined that her evidence of the alleged unreasonable behaviour of Mr Owens was insufficient and refused to permit the divorce. This led to a protracted court battle which led to an important decision on divorce by the UK Supreme Court. Lord Wilson affirmed the decisions of the initial judge and the Court of Appeal but stated that: ‘Parliament may wish to consider whether to replace law which denies to Mrs Owens any present entitlement to a divorce…’.

For many years, despite repeated expressions of dismay about the state of the law on divorce, this area of family law has not been a priority for reform by the government. The Law Commission proposed reform in 1990 and expressed a number of concerns with the divorce law. It was seen as unfair and unjust, as undermining the potential to save marriages and as likely to exacerbate conflict. The Owens case, however, gave the government a powerful judicial nudge to consider reform seriously.

Consequently, in April 2019, the Justice Secretary announced that divorce legislation would be reformed to help reduce family conflict. The ground ‘irretrievable breakdown’ would remain but the five facts would be replaced with a requirement to provide a statement about irretrievable breakdown. It would also provide for a joint divorce application to be made by both parties and remove the potential for one party to contest the divorce.

In essence, the proposed legal reform via the Divorce, Dissolution and Separation Bill ends the use of fault based divorce and provides well-needed modernisation to the law on divorce by reducing conflict and by preventing a scenario like Owens v Owens from occurring again. Currently, the Bill is passing through the House of Lords where it will reach the report stage on the 17th of March 2020. It will be a welcome change which will bring divorce law into the 21st century.

For further discussion of the Owens case and an overview of the proposed changes to the law on divorce, see: Samantha Davey, Family Law (10th edn, Palgrave Macmillan 2020).

This article first published on the MIHE Blog and is reproduced on the Essex Law Research Blog with permission and thanks. The original post can be accessed here.