This post proposes a new way of looking at family law: as at a spectrum from mediation (which comes first) to a real concern for rights and the further end of that spectrum. It proposes a rule of family law as a basis for a philosophy of family law; and for this to infuse the new family court. A book, The Philosophy of Family Law – now largely written – will follow.
‘The family court’
The family court legislation (Children and Families Act 2014 Parts 1 and 2; and Matrimonial and Family Proceedings Act 1984 ss 31B-31P (amended by Crime and Courts Act 2013 Sch 10)) will come into effect on 22 April; and a brand new court will open its various doors around the countryside. Will the blood of the family lawyer or his/her life-strained client stir anew? Will the family judge have a new pride in the institution s/he serves? Will Sir James Munby P walk garlanded in the Strand affront the Royal Courts of Justice; or a new day dawn in the life of fractured families? Probably not.
When the Report of the Committee on One-Parent Families July 1974 (inspiration for the first mediation service in Bristol: 1975 and onwards) was published nearly forty years ago hope stirred for family lawyers. Finer’s recommendation of a truly ‘unified family court’ made a new family law dawn seem attainable. Magistrates, in cases where a lay input could be valuable (eg care and other children cases) would sit down with judges (each gender represented). The brilliant Children Act 1989 came; but it was still slotted into tired old Victorian procedures. The ‘pilot scheme’ with its often unlawful Form E was squeezed into the 1991 rules (in 2000); and financial proceedings became more expensive still (‘front-loading’ entered the family lawyers’ lexicon). The same old, tired old procedures – are they non-adversarial or inquisitorial (which family lawyer or judge know exactly what is the difference?)? – limped on. The new family court will change none of this, on 22 April or at all.
A spectrum: from mediation to rights
Things are better than Dickens would have seen, but not by a great deal. He saw divorce taken over by the civil courts and died shortly before the Supreme Court of Judicature (now ‘senior courts’) was introduced in 1875-7. As legal aid recedes family breakdown justice risks returning towards what Dickens saw and wrote about: the misery, the hypocrisy, the lawyer’s insensitivity to others’ understanding, and so on; unless….
It is that ‘unless’ which is the purpose of this note and the book which – now mostly written – will follow it. It seeks to suggest a philosophy for family breakdown law which all can understand – lawyer and lay-person alike. It subjects the law of family breakdown to two simple disciplines. (The term ‘law of family breakdown’ is adopted here: ‘family justice’ has been hi-jacked as a euphemism for children law.)
The philosophy which underpins these disciplines relate to forensic environment and to law. Environment is to be found in a simple, but as yet largely unarticulated truth: that family breakdown must be seen as on a spectrum (even a rain-bow). At one end of the arc – the sunny end? – is mediation. Mediation seeks to empower people to reach their own agreement. This is not to avoid the law: the law underpins all that we do. It is to help people to reach their own accord. Litigation (or arbitration) is only necessary where opposed parties will not talk, or agreement wholly fails. And it can help, in between, with the knots and gristley bits (ie issues preliminary to agreement or other resolution) in the negotiation process. Mediation remains the start of the breakdown process; and its over-arching aim. The spirit of mediation must infuse all parts of the spectrum at all times.
At the other, and opposite end, of the rainbow – the dark indigo end – are individual’s rights. These are what litigation, at its purest, is designed to protect. A good lawyer knows with certainty what are his/her client’s rights and freedoms; and the means to protect them if need be. These rights are crucial in any society. They require a knowledge of the law in issue; and where administrative provisions apply, the testing of those legal rights against the actions of the administration (the court system, the Legal Aid Agency, a local authority etc). (It is a bitter irony that a right which King John was persuaded to recognise in 1215 may shortly be undermined in the cause of mediation (Children and Families Act 2014 s 10(2)(c): no issue of court process without MIAM): a true blight, thrust by our illegerate Ministry of Justice, upon an otherwise benign mediation movement.)
Between mediation and settlement (the crimson end of the spectrum), and rights (indigo), come degrees of case management (the greens and blues and yellows). There any adversarial-inquisitorial debate can take place (according to the different forms of issue to be resolved by a family court).
A rule of family law
Infused through this spectrum must be a rule of family law. This is the second simple discipline: the line between law and discretion, in a family court, must be crystal clear. Those who come to court and those who adjudicate will know what is the law, and how they must follow it; and they will know its parallel. The parallel to the law, is reasoned judicial discretion; and discretion based on common law or legislation. Discretion can only operate where sanctioned by law.
Thus the spectrum of all forms of dispute resolution – mediation and adjudication – within the family breakdown system becomes infused by a clear rule of family law. It will be present in all force where rights are in issue, to support fairness for couples and their children (with the local authority looking on, where need be). The need for assertion of such a rule of law will recede as family mediation succeeds in facilitating agreement.