Saturday, November 05, 2011

A few comments on the Family Justice Review

I know there have been and will be others far more learned than I who have/will comment on the Review, but I thought I would still give my views, for what they are worth. Specifically, the following recommendations are those upon which I have something to say:

The Family Justice System:

Establishment of a Family Justice Service: An excellent idea, which should be part of the establishment of a separate family courts system (see below).

Removal of charges to local authorities for public law applications: Common sense.

An integrated IT system should be developed for use in the Family Justice Service: Sounds good, but where is the money going to come from?

Judges and magistrates should be enabled and encouraged to specialise in family matters: About time. No disrespect, but I've always thought it absurd that judges deciding family matters may have no experience dealing with them.

A single family court, with a single point of entry, should replace the current three tiers of court: Another sensible decision, removing what was a complete nonsense, albeit improved somewhat by the Family Procedure Rules 2010. However, as mentioned above, we should really have completely separate dedicated family courts, rather than have family cases share buildings with civil and criminal cases, although of course there will never be the money for such a thing.

HMCTS and the judiciary should ensure routine hearings use telephone or video technology wherever appropriate: A good idea, which should reduce costs and speed matters, but may not be appropriate where litigants in person are involved.

Public Law:

Courts should refocus on the core issues: Not having done any public law work since the 1990s, I'm not perhaps the best person to comment upon this, but I'm not sure that it is a good idea to leave the care plan to the local authority.

The six month time limit for the completion of care and supervision proceedings: Sounds great, but the obvious question is: how is this to be achieved? The Review gives its ideas, but these are not entirely convincing. The real concern is that this will just put more pressure upon an already over-stretched system, and those who work within it. Obviously, delay is a bad thing, but it is clearly a lesser evil than getting things wrong more often.

A pilot on the use of formal mediation approaches in public law proceedings should be established: Interesting idea, but I'm really not sure that many public law cases will be suitable for mediation.

Private Law:

No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents: This has perhaps caused the most controversy of any of the recommendations, with many, including family lawyers, feeling that an opportunity has been lost. I was originally in favour of such a presumption, but I am tending now towards the view that it could put the rights of the parent ahead of the welfare of the child, which would obviously be wrong.

The need for grandparents to apply for leave of the court before making an application for contact should remain: I agree with this. Grandparents can be very supportive, but they can also be disruptive, especially where they have 'taken sides'. Besides, encouraging further litigation by making it easier for them to become involved does not sound like a good idea to me.

Child arrangement orders to replace residence and contact orders: Not really sure how much practical difference this will make. Hopefully, not going to be just a change in terminology (which I don't think will change the way orders are perceived - parents are concerned with how much time the children spend with them, not what it is called).

Establishment of 'online information hub': Again, how is this to be paid for?

‘Alternative dispute resolution’ should be re-branded as ‘Dispute Resolution Services’, in order to minimise a deterrent to its use: I can't see that this will make much difference. Anyway, 'ADR' is not a term used that much in connection with family matters, is it?

Where an order is breached within the first year, the case should go straight back to court to the same judge to resolve the matter swiftly: Sounds good, but will it make any difference to enforcement of orders? I'm not sure it will.

There should be no link of any kind between contact and maintenance: Of course.

The process for divorce should be dealt with administratively by the courts, unless the divorce is disputed: Not actually as much of a change. OK, it releases judges to do more important things, but that seems to be all. Will 'administrators' now make 'judicial' decisions, such as whether a petition has been proved, and who should pay the costs?

Government should establish a separate review of financial orders to include examination of the law: Good. When?

The Ministry of Justice and the Legal Services Commission should carefully monitor the impact of legal aid reforms: Well, this just made me laugh. As if legal aid would ever be reinstated to those areas from which it is to be removed...

12 comments:

  1. Theresa May stated on Question Time that proposals to deny fathers the legal right to see their children were 'not in line with Government policy'.


    Hopefully this is not another mealy-mouthed platitude so typical of many politicians.


    David Cameron was castigating 'absent fathers' on father's day recently. If this review is ever incorporated into law, then there will be quite a few more absent fathers - not by their own choice I might add!

    Have a word with Marilyn John - she will put you right.

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  2. Neither parent has an absolute right to see their child, but I will repeat what has already been said many times: no one is seeking to stop fathers from seeing their children. (I realise I am probably wasting my breath.)

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  3. quote: "I realise I am probably wasting my breath"
    You not wasting your breath, so keep on saying it and once this silly argument is forever defeated we can start talking about meaningful reform in Family Justice.
    Iain Duncan Smith may well be successful but it will be a retrograde step if the Fathers are given a legal right.

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  4. arnie - you say that if father's were to be given legal rights, it would be a retrograde step.

    Could you explain why this should be so? I would be interested to hear your opinion.

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  5. Northern Lights6 November 2011 21:20

    John,

    I agree with much of what you have said but suspect that the new streamlined family justice system (don't you just love euphemisms?) will be hamstrung by the real ethos of the Gov's approach- saving money.
    Similarly, the proposed specialist family judges (excellent idea) will not happen for the same reason. That would require investment.
    Frankly, I think the only winners here (in Private Law) are the increasing teams of mediators who are frequently charging upwards of £200p.h. I have no idea what they are thinking of when they suggest using it in Public Law.
    I think a rebuttable presumption of "shared parenting" would not have gone amiss, if only to re-affirm the intentions and ethos of the CA'89 which is gender neutral and provides for the involvement of both parents anyway.
    I;m not so sure about L.A- I suspect the avalanche of LIP's and botched outcomes may cause them to rethink. Unless they invest heavily in Family Courts and judges, they may find that backtracking on LA may be the lesser of evils.
    Time will tell...

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  6. as you know john, i know nothing of family 'law' (except that it seems to contain rather less law than other areas), but i don't see why a rebuttable presumption that a child has a right to a relationship with both parents would compromise the paramountcy (you have to question a field of law that invents a word like that) of the child's interests. equally, i think (in my blissful ignorance i'm sure) the phrasing of it as the child's right to time with both parents rather than the other way about might enable it to fit conceptually with the existing framework.

    above all i LOVE the aspiration that it should all be done in less than 6 months. can it also be sunny all summer, please.

    if i were in charge, i would replace all these points with a single objective which would read 'to make everything work much better'. that should do it.

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  7. Northern Lights: Thanks for that.

    SW: Yes, I like your single objective idea. Much simpler.

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  8. Family law, making sense out of nonsense.

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  9. all it needs is a catchy name.... maybe we could call it an overriding objective. that sounds frightfully important.

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  10. Brilliant! Why didn't anyone think of that before?

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  11. Perhaps 'Main thing law'. The overriding objective is to keep the main thing the main thing.

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  12. I can't believe people still have faith in these places.

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