Tuesday, March 30, 2010

Sir Mark and the terms of the FJR

I have just read the speech given by outgoing President of the Family Division Sir Mark Potter at the Annual Seminar of District Judges (PDF). I found most interesting his comments regarding the terms of the proposed Family Justice Review ('FJR').

Sir Mark explained that the Review "was launched with the twin principal aims of reviewing the Family Justice System’s approach to resolving private law disputes between separated parents and cases relating to the public law protection of children", and stated that he strongly supports the process of reviewing these two important areas. However, he went on to express his concern "that certain areas have been put to the panel by the Civil Service team in support which seem to me to widen that scope to an extent which could derail the review process, at least if it is to be completed to an acceptable timescale".

Sir Mark said that three of the proposed topics are:

(a) Review of the divorce/civil partnership dissolution process, which he said "is highly likely to excite the interest of groups (religious and otherwise) and politicians who have strongly held views about the ease, or otherwise, by which a divorce may be obtained". He therefore felt that this was "more suitable for examination by the Family Procedure Rules Committee in consultation with the Family Justice Council and other interested parties".

(b) Review of the basis upon which financial matters are resolved on divorce/civil partnership dissolution (“ancillary relief”), which he said "is a controversial and wide-ranging subject which, in my view, is well outside the scope of the current review and the [review] panel members’ experience". In his view, a fundamental review of this topic was "more appropriate for the Law Commission or a free-standing review body which has this very substantial task as its sole activity".

(c) Lastly, review of the ‘framework for managing the process of resolving family disputes, whereby there is effective leadership and accountability’. It is not entirely clear what is being referred to here but, he said, if it "relates to structures within HMCS then that is a matter for the HMCS, in partnership with the judiciary, but if the “leadership” and “accountability”, relate to or affect questions of judicial leadership and the accountability of judges then plainly these are matters which, under the Concordat, are for the Lord Chief Justice and/or the President as his delegate and I would strongly resist the suggestion that the FJR should have any role in reviewing the manner in which the family judiciary is organised and ‘accountable’".

For what it's worth, I agree with Sir Mark entirely. Don't get me wrong: I welcome review and reform of family justice, as I've stated here many times previously. However, including a review of divorce within its terms would certainly 'derail' the FJR, if the experience of the ill-fated Family Law Act 1996 is anything to go by. A review of ancillary relief would be huge, would delay the FJR inordinately and, in any event, is surely more suited to the Law Commission. As to point (c), I'm sure many groups seek greater judicial accountability, but this is clearly not the place to discuss that, or any reorganisation of the judiciary.

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