Discussion with my charming oppo this week about his reputation for verbosity (a characteristic I occasionally share – no, really) has prompted me into taking pre-emptive action. I present therefore, the condensed response to the Family Justice Review questions. As my dad always told me: ‘ask a silly question…’
Question 1: What does the family justice system mean to you? What should the purpose of the family justice system be? What should not be included in the family justice system?
Don’t confuse the witness – that’s three questions! The family justice system is a mechanism through which disputes between adults and parents can be resolved where other methods have failed, through which vulnerable adults can acquire protection from violence or abuse, and through which the state’s exercise of its responsibility to protect children can be properly scrutinised. It’s purpose is to strike the balance between the rights and needs of children and the rights and needs of their parents, to intervene as between parents and to check the intervention of the state into families. The family justice system should not provide a forum for ventilation of parental, spousal or ex-partner dispute or for the apportioning of blame except insofar as that is necessary in order to establish and ensure the welfare of children and / or vulnerable adult parties. The family justice system should not provide a ‘day in court’ simply in order to give bitter exes an opportunity to spout venom and bile.
Question 2: What should the role of the state be when dealing with family-related disputes that do not concern the protection of children or vulnerable adults? To what extent should the state fund this?
Isn’t this a big Political question?? (capital P) Do you really wanna go there?
We should embrace the Big Society and start community fora for dispute resolution. Meetings could be held weekly in the village pub and the community could decide contact disputes by arm wrestling or the best of three games of shove ha’penny.
Alternatively, one might say that the state’s role when dealing with family related disputes should be to provide support to families to the extent that they struggle with healthy family relationships as a result of intergenerational or endemic deprivation, abuse or neglect. The state should fund or otherwise make arrangements for this support to be available in order to minimise the broader and long term cost to the public purse of family breakdown, of intergenerational abuse, neglect and deprivation, and the impact of social exclusion and poverty.
The state should intervene in families only where strictly necessary for the protection of children and where support has failed. The final arbiter of when such intervention is appropriate should be the court.
Question 3: How effectively does the current family justice system meet the needs of its users? For example:a. Does it have the capacity to deal with all cases comprehensively?b. How could capacity in the system be increased?c. How efficient is the system?d. Does the system ensure equality and diversity?
I was under the impression that the snswer to this question was really the reason the review had been ordered in the first place. But here goes: The current family justice system does not meet the needs of its users at all effectively because it is chronically under-resourced. a. It does not have the capacity to deal with all cases comprehensively or at all. b. Capacity in the system could be increased by an increase in resources, specifically more judges and more staff acting in welfare or guardian capacity (whether that be via CAFCASS or some other method of delivery). I don’t really understand d. but here’s a stab at it: delay is generally detrimental to parents seeking contact who are generally fathers, ergo under-resourcing in private law disputes tends to disadvantage men more than women, but is harmful to families and children in general. The downward pressure on legal aid makes starting or remaining in practice as a family lawyer increasingly difficult for all lawyers but particularly for female self employed barristers with young families. The slow long term brain drain of professionals of all fields of the family justice system, who are similarly undervalued and underpaid is detrimental to families and children in general without discrimination. The more superficial approach to cases of a certain type which is dictated by the need to spread limited resources thinly is likely to result in some cases in the failure to properly understand and appreciate the significance of cultural nuance in a given case.
Question 4: Are there areas within the current system where we could adopt a more inquisitorial approach, whereby the court actively investigates the facts of the case as opposed to an adversarial system where the role of the court is primarily that of an adjudicator between each side? What are the options, and advantages and disadvantages, for:a. Private disputes arising from divorce or separation?b. Public matters, where the state intervenes to ensure the protection of children?
Newsflash, the family courts already adopt a quasi-inquisitorial approach. The court’s inquisitorial function is in part exercised by CAFCASS – except its not. Because CAFCASS doesn’t work. Or by experts. Where permitted. The posing of an adversarial as against an inquisitorial system is a false dichotomy.
Question 5: How far are users able to understand the processes and navigate the family justice system themselves? a. Are there clear signposts throughout the system? b. Do users know how and where to access accurate and timely information and advice? Is it readily available?c. What are the options to support/enable people to resolve these issues without recourse to legal processes?
Users are able to understand and navigate the processes and navigate the family justice system with the assistance of a lawyer. They are less able to do so without that benefit. a. The signposting throughout the system for litigants without the benefit of legal advice is woefully poor. b. Users do not have any means of accessing accurate and timely information and advice if there is no solicitor in their area who is able to take on their case. Support from other sources is limited and patchy. c. If by ‘these issues’ you mean family disputes (the question does not actually identify what is referred to) families can seek to resolve matters by alternative dispute resolution processes such as mediation or family law. This is inappropriate for some families and does not work for others. Alternatively the grandparents can bang their respective children’s heads together and tell them to grow up for the sake of the children. Oh no, wait. That won’t work because they’ll all be too busy at court asking for their own grandparental rights to be enforced (see below).
Question 6: How best can we provide greater contact rights to non-resident parents and grandparents?
By changing the law. But don’t do that. Because it’s a stupid idea. All parents already have rights, they just need to be able access legal redress if those rights are breached within a reasonable timeframe. Grandparents are big and ugly enough to come to court already without difficulty where warranted. It’s insanity to expand the pool of potential contact disputees and to encourage a litigious rights based approach whilst simultaneously encouraging mediation and hugs all round.
Question 7: How effective is alternative dispute resolution (ADR), such as mediation, collaborative law and family group conferencing? What types/models of ADR are more effective and for which circumstances? Does this differ according to cases? How could we improve it and incentivise its use and what safeguards need to be put in place?
Not as effective as successive governments would like to think i.e. it does not represent a complete alternative to court. Suggest however that in order to answer this question it might be a good idea to do some research before strangling the court system by transferring 95% of the significantly reduced FJS budget to untested ADR projects. Clearly a one size fits al approach won’t work. Of course it needs to differ according to cases. It’s use could be incentivised by the courts actually using the power to require parents to attend mediation information sessions.
Question 8: To what extent do issues around enforceability of court orders motivate decisions to go to court? To what extent does it affect decisions within and outcomes of cases?
Issues around enforceability of court orders (which is negligible) do not motivate people to go to court. People go to court as an option of last resort, in spite of the fact that orders are not enforced, but in the hope that they will be made and obeyed. Difficulties ensuring compliance with orders significantly affect outcomes for children in cases of parental hostility to contact. These difficulties also increase the burden on the court service and public purse generally by requiring frequent returns to court and prolonged court intervention.
Question 9: Are there elements of cases which could be considered outside of a court setting and if so by whom? For what type of cases would this be appropriate and what sort of settings might be suitable alternatives? What are the benefits and disadvantages?
Yes, some things can be dealt with outside court. Mostly where this is possible it already happens. The advantages are that most vaguely sensible people don’t want to come to court and have someone else decide important things in their livest. If it works its cheaper, quicker and less stressful. The disadvantages are that it doesn’t always work. The risk of trying too hard to steer all cases away from court is that the protection of adults and children may be compromised and failed attempts to resolve dispute through ADR will cause harmful delay and greater expense to the public purse than going to court promptly.
Question 10: Would adding a triage stage, whereby cases are assessed as to the appropriate course of action, make the system more efficient; i.e. by speeding processes up, ensuring resource could be allocated appropriately etc? In what areas might this be appropriate?
Urm…please refer to the Revised Private Law Programme. I think someone has already thought of this.
Question 11: Do you think the family justice system is well organised and managed? What are the strengths and weaknesses of the current governance and management structures? Who should take responsibility for the decision-making process? Who should be responsible for the administrative running of the system?
No. Strengths of current governance and management structures – none spring to mind. I think you’ll find that traditionally Judges take responsibility for the decision-making process and administrators for the running of the system. Suggest that a reveral of roles might be entertaining but unwise.
Question 12: What systems issues are there? Eg. how could things like IT, filing and administrative processes be improved?
IT could be improved by having functioning faxes, basic photocopying facilities, reliable email addresses, phones that are answered. It would be novel if HMCS did not rely routinely on lawyers to carry out its administrative responsibilities in the form of drawing up orders and if the computer said ‘no’ less often. It would be nice if the many wonderful staff in the court service were not so chronically overworked.
Question 13: Who should take ownership of cases when they are in the family justice system? Who is the case manager? And at which point do and should they relinquish responsibility?
If there were sufficient judges to ensure judicial continuity this question would be redundant.
Question 14: How can we ensure that there is sufficient and appropriate accountability throughout the system?