A hundred days till the election
With a hundred days to go to an election, my top ten list for law reform (mostly family) would be as follows:
1 Clarification of law – all primary law, procedural rules and other delegated legislation (regulations, guidance and the like) must be written in language which is understandable by the averagely intelligent lay-person (with a dictionary). The procedures it describes must be logical and follow common law rules. Children law procedure in one part of Family Procedure Rules 2010 (Part 12) with 16 practice directions is an insult to all of us; and an unjustified assault on the many lay people who wrestle with litigation over their children. Legal aid and its regulations add another dire dimension of opacity of the so-called rule of English law.
2 Mediation first – the mediation process should be clearly separated from the litigation process. In the public mind the point of entry into the family breakdown system should be mediation first. It would follow from that, that solicitors’ organisations (eg Law Society, Resolution) should look very carefully at the extent to which they can fairly, and without conflict, represent both mediators and litigators.
3 Cohabitation law – must be brought into line (as it has been for most children proceedings: welfare and money) with other law on family breakdown (eg in relations to parties’ finances and rights to their home).
4 Legal aid – in the modern austerity climate a wholesale return to pre-1999 family law legal aid is impossible; but circumstances where the tax-payer can be banker (via the statutory charge must be investigated); domestic and other abuse must guarantee legal aid (graded domestic violence: how sick is that?); other forms of funding – without too much complexity (relative ‘clarity’ per 2 above) must be found.
5 Case management – effective case management is the obvious ‘something must be done’ of Munby J’s plea; but now he is in a position to do ‘something’ he ignores the point. The judiciary has the remedy in its own hands; but it must take hold of it:
• Since case management has been around since at least 1999, it seems judges in family proceedings need training
• Issues must be identified at the outset, and the evidence relevant to these issues kept under control
• Issues which need a preliminary decision – sometimes so obvious – must be identified and disposed of
6 Parallel case management and mediation – case management must go hand-in-hand with mediation; on a parallel (ie parallel lines never meet, save in infinity) basis. There will be symbiosis between mediation and case managed litigation: sometime the mediator will control this; sometimes the court. The point is that the court process – and therefore the marriage breakdown lawyers – does not control agreement or disposal on breakdown. In-court family dispute resolution, if conducted by the court, must be done by trained judges; not on the hit-and-miss basis at present.
7 No fault divorce – divorce is an administrative process, not part of the court/litigation process; and this should be recognised, given effect to and – whilst on the subject – it should be made non-fault.
8 Protected individuals – or ‘vulnerable witnesses’, must be taken very seriously. It cannot be just one rule change, as now suggested by the witness working group. My response to the 31 July Interim Report of the working group is at https://dbfamilylaw.wordpress.com/2014/10/05/consultation-on-children-and-vulnerable-witnesses-court-proceedings/; and I urge my recommendations there as part of this manifesto.
9 Children law – the child sex abuse inquiry which is proceedings so falteringly can produce ideas (see eg https://dbfamilylaw.wordpress.com/2014/10/26/csainquiry-what-the-inquiry-must-consider/ ) for child protection law reform. It is urged to do so such as looking a child confidentiality, whether Working Together is working and so on.
10 ‘Transparency’ – The so-called ‘transparency’ debate is wrongly named (since it implies that a closed court is the starting point). Its real meaning is the extent to which family courts can lawfully made private – such as where children’s private lives are in issue. The present debate must be scrapped, the rules made lawful and privacy in family proceedings looked at in principled way. Any case starts from open court, and the law defines where privacy should start (and privacy will rule, most certainly, in many family proceedings).