On legal aid, he said “you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished“. This may not come as a surprise to those who have been following the family legal aid tender debacle. But the practical outcome of a reduction or abolition of Legal Aid will be that when cases do come to court, more will have to be accomplished, and faster, before the money runs out. Sir Nicholas suggests some ways of achieving this.
He makes a number of proposals for change. First, he said that the family law system needs to become less adversarial, for the sake of the children. There is “nothing worse” for children than “for their parents to denigrate each other“. Of course, this is harder than it sounds. Bitter family disputes are often fought from one ‘contact’ hearing to the next, with little regard for the long-term perspective. Sir Nicholas suggests that more could be accomplished if the same judge was assigned to each separate hearing in the case; at present, parties may encounter 10 judges across ten hearing. From April 2010 courts have been obligated to consider judicial continuity in family cases, and he suggests quoting this back to the court if there is an issue (see here – para 2.2).
His second proposal relates to better enforcement of contact orders. Simply, judges are “reluctant to enforce contact orders by committal for breach“. They worry that an order might alienate children from the sanctioned parent, and if that parent were sent to prison it would have an even greater effect. Sir Nicholas is of the view that “education and instruction rather than punishment” is required, and that more needs to be done by the courts to actively manage this.
More fundamentally, endless disputes arise because “separating parents who are unable to resolve issue between themselves rarely act reasonably”. And, surprisingly, “the more intelligent the parent, the more intractable the dispute.” How, he asks, can this cycle be broken?
His third proposal is to make mediation compulsory in family cases. It is likely that this will become law under the new government, and parties will have to show that mediation has been attempted and failed before they institute proceedings. This is clearly sensible, and mirrors the increasing focus on alternative dispute resolution across the civil courts. However, ADR needs two willing parties, and it is possible that family cases may often not be appropriate for such soft-touch methods.
He went on to comment the case of Payne v Payne, in which the Court of Appeal ruled that in consideration of international child relocation cases, the interests of the child were paramount, above those of the parents. Sir Nicholas agreed with the court’s conclusion, but urged that a flexible approach be adopted in such cases: “There will be cases” he said “where relocation will be in the interests of the child or children concerned: there will be cases in which it will be wrong. There is no simple answer, and it is wrong to assume that there is.”
Sir Nicholas is turning out to be an outspoken president. In August he wrote to the Legal Services Commission saying that there is a “a grave danger that the [family justice] system will simply implode.” His comments related to the possibly botched award of contracts in publicly funded child and family work. And, shortly before he took on his role, he referred in a judgment to social workers as “arrogant and enthusiastic removers of children”.
The new government has ordered a full-scale review of the crumbling family justice system (the deadline for giving evidence is next week), and Sir Nicholas expects that the changes are likely to be “radical“. Given the enormous challenges facing family justice, it is important that its president continues to be an outspoken advocate for change.
Update 26 Sep – see our follow-up post on fathers’ rights here.
Read more:
- Previous posts on family law
- High Court judge says legal aid tender was a “dreadful decision”
- Child protection review ordered by Government in light of crumbling system
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