FAMILY COURT: SHREDS AND PATCHES TO A NEW RULE OF CLARITY AND FAMILY LAW  

The ununified family court

As I go away for a week’s holiday I record a matter of real sadness to me: the lack of clarity and any underlying philosophy about where family law is going. I take the ‘family court’ as my barometer. I grew up at a time when the Finer Report (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) was published (4 July 1974, when I had been admitted just over a year). It being the 1970s, we had a Finer Joint Action Committee with sub-groups for law; day care; housing and welfare benefits: Finer covered all these subjects including a guaranteed maintenance allowance for single parents (anyone remember negative income tax? It was linked in with that: there were people around then who had grown up with Beveridge and the concept of a welfare state.)

I was part of the Bristol FJAC, and of their ‘legal sub group’. Our main project was working towards the ‘unified family court’ (UFC). We included two circuit judges in our group. As an incidental we had an off-shoot working on ‘conciliation’ (mentioned almost in passing by Finer at paras 4.85-4.90). The conciliation offshoot – I was secretary to its steering committee – ultimately spawned the Bristol Courts Family Conciliation Service in the late 1970s. I remember an evening (17 November 1976) when all attempts to persuade what was then Divorce Court Welfare to take us on had failed, that Mervyn Murch and I agreed that we should get our fellow trustees to go private. So we did. Together he and I set about galvanising our colleagues to raise the cash through trust funds. And so the idea – eventually becoming mediation – grew. (Mediation, it seems to me, still falters for lack of a positive vision of itself and of any proper regulation which the public can trust: but that is for another day.) The Bristol scheme finally died in the 40th year after Finer was published.

A unified family court

The UFC idea was taken on by SLFA (as it now is not). It ran into the ground, certainly in the form Finer envisaged it. The government said it was too expensive; but would never agree a model which could be costed and so to make good that assertion. One idea Mervyn and I had in about 1976 was for a child maintenance scheme fixed administratively according to a person’s income by a county court clerk (all explained on a side of foolscap (A4)). If you didn’t like the figure you could appeal to a district judge who had Matrimonial Causes Act 1973 (or GMA 1973 as it was then) discretion to fix a figure. The child support scheme would never have been if that idea had taken on. But traction for the family court ideas faded, and the idea of a unified family court ceased to be part of any family law reformer’s real agenda.

Imagine my excitement when I discovered that a ‘family court’ was approaching the statute book; though I found it a little odd that the project was tucked away in Crime and Courts Act 2013 Sch 10. No one at Resolution (a group which represents family lawyers) had heard of it; and it could not be moved, then, to take any notice of the new plans. Thus did none of my childish family law dreams fade. The brave new world of a single family court serving the family breakdown community has passed most family lawyers by; and has produced – for all Sir James Munby P’s rhetoric – a thing of shreds and patches; and more or less more of what preceded its whimperish introduction last April. Another layer was added, with the court’s introduction, to the burgeoning maze of practice directions which pass for family procedural law (mostly produced in a scamper a few days before the ‘new’ scheme came on tap).

I find myself writing always ‘family courts’ (never the family court); and it depresses me. Why? (1) There is one particular administrative body which covers a large proportion of family breakdown work (you can’t say ‘family justice’ since that terms has been hijacked off for children proceedings): that is, indeed, ‘the family court’ (lower case initial letters per Sch 10). (2) There is a Family Division which takes particular forms of family work. (3) There is a Central Family Court (in reality Holborn County Court, but district judges there – who wear knee breaches (like real cross-dresser High Court judges) on formal occasions – are terribly touchy about their rank). (4) Child support work still goes off to the First-tier Tribunal; and (5) some goes to the civil arm of the magistrates’ courts. Sir Morris Finer and his committee would weep.

One of the cosmetic problems, I am sure – at least it should be only cosmetic – is that judges are obsessed by rank. You can see this in the fact that we now have to have three sets of reports to cover the little Alsatia (a lawless community off Fleet Street in the early 17th Century, to which Sir James Munby P (as he then was not) drew attention in Richardson v Richardson [2011] EWCA Civ 79: though he asserted that family law was not that) which family breakdown law is becoming. It is therefore essential that each rank is given its type of work, and that it keeps its dignities (as with the Holborn court). And worse: individual courts, even within the one ‘family court’, can have practice direction variations which apply only in their area. That is a truly discriminatory practice (ie unless you practice in Doncaster court you may not know what funny preferences they have there for (say) bundles; or even for what you have to wear in court!). The civil justice reforms of the 2000s were intended to eliminate such geographical discrimination.

A new family law procedural dawn

Where then do family courts go, for example, if Online Dispute Resolution is developed in the civil courts generally (and see further https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/ )? All civil proceedings are subject to the same common law (the point that Munby LJ was seeking to stress when he said family law was not (as he then asserted) some Alsatia). If ODR does take off, will the High Court judges (who have just looked backwards and found it pleasing in their review of financial remedy procedures – http://www.judiciary.gov.uk/publications/financial-remedies-working-group-report/ ) obstruct the idea; will the begaitered district judiciary in Holborn deny the possible costs benefits; or will 2015, 2016 or 2017 finally see the family courts (they remain that, not ‘unified’) peep at a bright new ODR procedural dawn?

And perhaps will Sir James Munby P finally understand that when it comes to procedural law reform and setting up a truly new family court he has, as emperor of the new scheme, no clothes; or little more than shreds and patches. I fear, brilliant judge though he is – and judging is after all a reactive role – he has no clear underlying coherent pro-active philosophy for his reforms. He has no real will to change the Dickensian procedural scheme over which he reigns. He has no vision for clarity in law (for clarity in law see https://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/ ) and a system that ordinary people can understand and use.

A unified family court could rise incrementally on the ashes of what we have now (as Finer in part proposed). It would be devoted to a rule of family breakdown law; to clear case management; and, most important of all, to clarity in all laws and rules underlying them. (Everyone – not just a few lawyers – must be able to understand the law and rules – https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ .) The UFC would be based on the common law within a single court administration. It might even have judges (like Lord Phillips, who persuaded some judges to remove their wigs and dress differently in court) who could break their cross-dressing habits and appear – at least in public – dressed more or less normally. That is a completely cosmetic issue, I accept; but oh how important in the context of a new court with a new philosophy of relative modernity.

It is that new philosophy, new clarity and a new devotion to the rule of family law, which this new unified court must embrace. Who is up for making Finer happier in 2024, for his committee’s report’s 50th anniversary?

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