Sir James Munby and plans for family courts reform
Sir James Munby, President of the Family Division, has courted some controversy – and beyond family law legal circles – with his announcement, at a bar lawyer’s dinner at Middle Temple Hall on 26 February 2016, of the next phase of his reform plans for family courts (http://www.familylaw.co.uk/system/froala_assets/documents/471/munby-president-speech-family-law-bar-association-flba-2016.pdf). Continued reforms are needed. This note summarises the President’s ideas, and proposes other priorities for family law.
Sir James outlined his plans in four main areas. First he emphasised his concern for children’s involvement in the court process: both as to their ‘jig-saw’ identification where law reports about their family have been published in his push for ‘transparency’; and also as to how they might be involved in the process itself. He highlighted the fact that the proposed reforms for vulnerable individuals in family proceedings – joined with proposals for children’s involvement in proceedings – are stalled on a spoke of ‘decisions by officials and ministers on various funding and other resources issues’.
Secondly, there is a real need – for litigants in person and parties generally – for administrators (which includes the President) to ‘strive constantly to improve, to streamline and to simplify the system’. To emphasise this point he says ‘we need an entirely new set of rules’. The present rules are ‘fit only for the bon fire’, he say (he seems to overlook that Family Procedure Rules Committee is responsible for drafting the rules, and is chaired by him, though its minutes show he rarely attends the Committee’s meetings).
‘Settlement conferences’ – broadly formal attempts at in-court mediation – are to be developed for children proceedings (many would say, not before time). And then judges might become involved at a ‘pre-proceedings’ stage. Will judges become social workers and attend case conferences? I wonder how many of Sir James’s fellow judges were involved in a discussion of that idea?
Finally, what is the ‘function and purpose of the family courts’? Sir James answers the ‘function’ question by saying the court must move to a digital future with much of its work being done on-line and thus outside the court arena. Part of this would be re-writing of the rules – so far as ‘we still need them’ – in ‘plain English’. But of ‘purpose’: save for judges involved at a ‘pre-proceedings’ stage, Sir James says little; and I must touch on this below.
A family court for the 21st century
If I had been drafting Sir James’s speech I would have included: mediation; the purpose of a family court; clarity of drafting; dealing with children and vulnerable individuals; and IT.
Mediation, as a topic, does not feature in Sir James’s speech; yet as a priority over litigation, or as a parallel means of resolving disputes by agreement, mediation is essential to any contested process of family breakdown. It must be a firm part of any family law reform process.
The first purpose of courts is adjudication on contested issues: without an issue there would be no need to go to court (except the administrative throw back in family courts of divorce). Thus, where mediation leaves unresolved issues, the court will be involved in adjudication on facts or law or both; but it is important to be clear (1) that that is what judges do; and (2) that they only become involved when someone – an applicant – asks them; not, for example, as part of some social work, or other therapeutic, process relating to children or separating couples.
A fair means of adjudication which is accessible must be the first purpose of a court system. This demands clarity in law drafting. Procedural rules must be developed which can be understood by any averagely intelligent lay person; though the law can be complex and cannot always be reduced to a lowest common denominator linguistic factor. Judges, like Sir James, must always recall that rules are there as much to regulate judges and case management as to regulate the way that the parties’ dispute proceeds to judgment. Rules will always be an essential component of fairness and of the rule of law.
Vulnerable individuals and hearing children are two separate aspects of reform, but are coupled here for economy of space. Some effective rules must be developed (family law is 16 years behind criminal law); but the present draft (Family Procedure Rules (Amendment No X) 2015 https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) must be clearer. For its main consumers (children and abused individuals) it will be a poor advertisement for clarity in law drafting. What are they to make of, for example, ‘special measures’ which apply to them where their evidence may be ‘diminished’? If they understand what that means, how then are they to secure payment for the measures?
Many ideas are at large for involving information technology in forms of court process. What has happened to the online dispute resolution (‘ODR’) report (https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/) of February 2015? ODR ideas need development within the family courts system. Their importance for mediation and resolution of disputes cannot be put too high. But the role for personal involvement – especially in family breakdown – remains. Technology cannot replace individual mediators, legal advice and the role of judges where discretion and legal principle must be balanced.