PAPER SUBMITTED TO RESOLUTION IN MAY 2013

There follows the text of a note submitted by me to Resolution National Committee in May 2013. It was rejected because, I was told, they could none of them work whHt me. The decision on the paper, considered in secret, was not minuted. 

NOTE from David Burrows

to Resolution NC

May I help, please…

1        Working party on introduction of family court

2        Helping to define family law reform policies for 2013-8

3        Life after LASPO: how to help members to help clients; and developing the Dunkirk defences

4        Prepare conference on LAW (perhaps as education/training and to open up a debate on continuing reform of the law on family breakdown)

Introduction: an ordinary member

I write as an ordinary member outside the mainstream of Resolution matters (eg I am very confused as to who is actually running Resolution nowadays, and who responsible for what day-to-day).

I am still well within the mainstream of what is going on in the world of family law reform (by which I mean reform the law of family breakdown), such as:

  • The intent to set up a unified family court by April next year
  • Decline of legal aid availability (and problems eg with instruction of opinion witnesses)
  • Further proposals to cut back on legal aid payments (with family lawyers demanding any quid pro quo? – eg reform of procedure?)
  • Developments in mediation, collaborative law and arbitration
  • Movements to reform child law procedure (known by MoJ as ‘family justice’)

I have a full-time job: writing, teaching/training and acting for a few people.

I do have time to commit to efforts for law reform.

Can I help through Resolution? For example, could I assist through a working party whose aim – for our members and for the people we serve – would be to work with MoJ in the setting up of the Family Courts system?

At the minute Liz tells me she only is dealing with the whole family courts subject – which is potentially massive (eg all Family Procedure Rules 2010 are to be reviewed and (to a degree) redrafted; the admin of the family court system will need to be defined and the position of magistrates as judges (hazy at present) to be defined – with 10 months to go….). 

Policies and a ‘five-year plan’

I am aware that, according to its website Resolution has no plans for law reform other than the three subjects there set out. These have been long overtaken by later events (eg Radmacher and earlier), or become largely totemic (‘no-fault’ divorce). Perhaps law reform is no longer a priority for Resolution? If so who decides? Where is the law of family breakdown going and can Resolution do anything?

There next year will be dominated by:

  • The Justice Secretary (‘Lord Chancellor’) wants to cut legal aid still more – soon after June 2013;
  • A new family court is to be in place in April 2014.

Short term, can anything be done at the delegated law level to improve things on legal aid and on any aspects of procedural reform; so…

Legal aid – life after LASPO

LASPO (the Act) is lost: the ‘justice’ minister (‘Hitler’) has already come around our Maginot line. We seem still to be revisiting the LASPO campaign (what people are getting, we ask LA?) Well yes; but surely we want to help our members to look at the people who aren’t getting legal aid but who would have before; and can we help our members to get paid to help them?

It would be helpful also to know (remember the research project SFLA ran as the Children Act 1989 came in? – something like that):

  • Who isn’t getting legal aid; and
  • Why not; and
  • What is being done (if anything) instead to help

And after the Maginot line has failed, preparations must be made to hold out at Dunkirk? This ‘justice’ minister is not going to stop at Belgium. A state-controlled legal service may follow; and/or repeal of Children Act 1989 ** (legal aid for children and those with PR in Part 4 proceedings). These may be not far away. Criminal legal aid can be cut back; why not wastrel parents as well (only the child need be represented, surely?). Straws must be in the Tory wind. Are we ready for that?

As the ‘justice’ minister takes us apart how are we re-grouping and preparing to take a real fight back to him? Is that in the 5 year plan, I wonder (I only ask)? Or are legal aid – poor people family lawyers – just going to have to lie down and leave it for the ‘JM’ to trample – jack-boots and all – all over us 

Policies and substantive law

Just a few thoughts:

1        Move on from pre-nups (see eg Radmacher?)? Surely the debate is now about negotiated agreements and arbitral awards

2        Confidentiality and privilege in children proceedings: DR Committee have started on this one (and we drafted a clause for the family justice bill, but it was too late by then)

3        Case management and interventionism (adversarial/inquisitorial) in children (and any other family) proceedings (I think this will need primary legislation); and the role of the mediator in defining issues?

4        Family law legal aid in 2015; and the government as banker (have we given up on that one? – was it forgotten in the LASPO overrunning of our Maginot line?)

There are four subjects for substantive law reform. And if the Government offered a family law bill tomorrow, what would Resolution want in it? 

Resolution – LAW: a conference

Could family LAWyers have an annual conference? We could talk about law – that precious thread which runs through all that we do and believe in….; and, it must be said, the subject which enables us to charge substantial fees to our clients (the people we advise and assist).

David Burrows

21 May 2013

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