ALSATIA: A WAY OUT…

FC-Day-48: the Family Procedure Rules Committee met after a 10 week Christmas break (their previous meeting was 4 December 2013). Their minutes show a variety of activity, of which little is known to the outside family law world. For a law discipline devoted to transparency (cf Sir James Munby P) and full relevant disclosure (per Matrimonial Causes Act 1973 s 25 and Livesey v Jenkins) they keep their cards remarkably close to their scrawny chest.

I say ‘scrawny’ since their make-up is such, I would say, as to cause alarm to a modern Dickens. If things go wrong in a family breakdown system of justice, people, especially children, could suffer terribly. The work this group can do, with its meagre resources and miniscule independent representatio, is nowhere near enough to ensure a safely opearing system of justice.

Perhaps I am out of step. The fact is, however, that FPRC is made up almost entirely of civil servants (ie Ministry of Justice employees: functionaries and judges) with a tiny compliment of members who are not MoJ staff. I am sure that everyone works very hard. The craven weakness of the exercise comes from the scant ability of the group to provide any real collective objectivity; or of its ability to control its chairman: the same Sir James Munby P. For example, of the 5 private practice lawyers, one is now a judge, one a part-time judge, two are QCs with no secret of their ambition to become judges (being on the FPRC is good on the aspirant judge’s CV). That leaves one unattached solicitor with no interest to declare (of which I am aware), in a committee of around 25. And he, in noble Victorian style, is not paid. All the work which the committee demands of him, or could demand, falls on his unpaid shoulders.

This is the system of procedural law which assumes responsibility for taking children into care, sends alleged contmnors to prison – and now, denies most former legally aided parties (save in care and committal proceedings) the state paid help of a lawyer. Kafka may soon join Dickens to watch with mounting concern.

So there’s not much room for rocking the family law procedural boat there. And so, our mongrel set of regulations speckled with provisions of dubious vires, stumbles on. Alsatianisation reels its varied way. The president decrees like some denizen of Alsatia, a seventeenth century strong-man (there is no mention I could see in the FPRC minutes of his 16 January 2014 transparency Guidance , for example); and his group of judges and civil servants and would-be judges, our FPRC, scurries on. (The Alsatia imagery is slightly adapted from his own terminology in Richardson v Richardson [2011] EWCA Civ 79, and other cases; and see New Law Journal at [2014] David Burrows at http://www.newlawjournal.co.uk/nlj/content/doghouse.)

Many of us, also volunteers, but most (probably) without judicial ambitions, are willing to help. Please find work for us President. We’ll find you a way out of your lawless activities (including a means to make what you dictatorate, legitimate).

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