It is a familiar problem. A divorce is being endured. It is, by definition, fractious and, most importantly, still fractious in respect of the children. Or, put in lawyer’s tongue, there are ongoing matrimonial finance proceedings, in which the children are the first consideration (section 25 (1) Matrimonial Causes Act 1973) but the “child arrangements” (that hideous phrase; Children Act 1989) are unresolved.
On the 30th May, the President of the Family Division (Sir James Munby) gave a lecture (“What is family law?- Securing social justice for children and young people”) at the University of Liverpool. He set out proposals for a unified and holistic approach to family proceedings and a “one-stop shop” which would be capable of dealing with “all a family’s problems, whatever they may be”. By definition, this would require “an enhanced and re-vamped family court”. Whilst the title of the lecture, ironically, is focussed on children law, such a change would by definition have an effect across the spectrum of family law or, rather, have an effect for families at times of their greatest difficulty.
Before addressing the question of “family law”, Sir James considered the very definition of “family”. He identified “five major developments”. Namely, (i) changes to social and religious life (a multicultural society which is both increasingly secular and religiously diverse), (ii) trans-national families, (iii) a disinterest – even, in some instances, a rejection of – marriage, (iv) the changed attitude to same sex unions and (v) developments in medical and reproductive science. He noted that the multiple ways that we have departed from the nuclear family are not only a reality but a “reality which we should welcome and applaud”. However, family law, albeit faced with “enormous challenges”, continues to prove “maddeningly slow” in keeping up with changes to social reality.
Sir James starkly addressed what he described as the changed position in law of the married woman from his Victorian predecessor (Sir James Hannon) and his statement that marriage represented “protection on the part of man and submission on the part of the woman” to White v White  1 AC 596. And to paraphrase, what is so unconscionable is the sheer length of time from the reign of Queen Victoria to the year between the brackets after the aforementioned case.
Coming to the issue itself of “family law” and its definition. Family law is concerned with the regulation of (i) “status” in relation to partners, parents and children, (ii) the consequences of the fracturing family and (iii) the regulation of family finances.
All of which poses the question and answer: “Do the family courts as presently constituted provide an adequate legal and procedural framework for the resolution of family disputes and do they – can they – secure social justice for children, for their parents and for their families? The complacent may answer with a reassuring ‘Yes’. I am far from being so sanguine.”
Sir James identified four problems. In the first, the complex procedural rules which make for a fragmentation and delay, added cost and, most importantly, added stress. In the second, the fact that family courts are not, as they should be , “problem-solving” courts. That is, too much of the focus is on the future (“disposal”). This is majestically subversive. Any family practitioner would grow rich if paid a pound for the number of times they have been implored by a tribunal to focus on the future. But this exclusive approach (both noble and facile), Sir James recognises, has a cost. Sir James notes, “it is all too easy to focus on the child’s future, without paying adequate attention to what it is that has brought about the court’s involvement in the first place. And, especially with younger children, that has to do almost exclusively with the parent, or the family as a whole, and not the child. Very often, as we all know, the families and children who find themselves before the courts are the victims of multiple difficulties and deprivations: economic, social, educational, employment, housing and health (sometimes both physical and mental). These are families desperately seeking social justice. We should be treating such families holistically, but, too often, far too little time is spent identifying the underlying problem or, more typically, problems and then setting out to find a solution for the problem(s). In a sentence: family courts ought to be but usually are not problem-solving courts.”
The third problem identified is a lack of jurisdictional unity in instances when the same family finds itself in litigation in any number of courts before any number of judges (e.g. Family Court and High Court, Family Court and Criminal Court). He continued, “We cannot, of course, wait as the decades pass while the argument gains traction. But could not more be done in the interim by the judges?” He suggests improving understanding across the jurisdictions of how the others work and introducing mechanisms for collaboration such as cross-ticketing.
The fourth and most pressing problem is distilled in Lord Scarman’s statement of constitutional principle in A v Liverpool City Council  AC 363. Namely, “The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority.” This, as anyone who has experienced care proceedings will attest, is indeed a fundamental problem. This speaks not only of the Court’s inability to direct (as opposed to “persuade”; and, seldom is there power in the persuasion) but the ultimate lack in funding and resources. In other words, the tools of persuasion and shaming are no match for a local authority.
“Standing back at the end of all this, what is the objective to which this part of family justice reform ought to be aiming? My thesis is simple, though the road to achieving it will, I fear, be long and hard.
We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be. More narrowly, dealing holistically with the family court’s traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victim. Family justice is surely about something much wider than mere lawyers’ law.” Here’s to that.