02 July 2010

Family Justice under the microscope

So, it has begun. The long trailed Family Law Review was announced on Wednesday with a "call for evidence" launched by the Review Panel. This is the first stage in a process which it is hoped will lead to the publication of recommendations next year. The Panel's remit is a wide one, with views being sought on how to have a more user-friendly and child-focused system; the best methods of resolving family disputes including ADR; and how the system is to be governed, managed, and funded.

Whilst the review is welcome, one wonders what will be the likely landscape that the Family Law Review Panel will report on in 12 months time.

Public and private law proceedings are on the increase and significantly so. In the third quarter of 2009 there were 6,500 applications for care orders. In the same period, 35,600 private law applications were issued. This represents a 35% and 19% increase on the same period in 2008. There are no signs that this trend is on the wane.

Social services have recruitment and retention issues, Cafcass is overburdened and the Official Solicitor has said that new cases will only be accepted when the acceptance criteria are satisfied and there is a case manager available to manage the case.

The Ministry of Justice is carrying out a fundamental review of the Legal Aid budget and consulting on whether to close 103 Magistrates' and 54 County Courts out of the 530 Courts in England & Wales.

The system is already stretched to breaking point. And yet a decrease in the number of Courts able to process cases is inevitable as is an increase in the number of cases coming before those that remain open. More litigants are likely to act in person. Social services and Cafcass will remain hard pressed to deliver.

In short, parties and their children are facing even greater delays than before.

The Panel has said that it is seeking views on:

- How can the justice system focus more on helping family members to reach agreement rather than pitting them against each other?

- How best can the courts working with other agencies to support children involved in the care system?

- How best can the system provide greater contact rights to non-resident parents and grandparents?

I suggest the first in the list is the key with, to a greater or lesser degree, the second and third issue flowing from it.

And the answer is, as ever, education from which flows knowledge and insight. 

Educating parents of the rights and obligations that flow from parenthood and enlightening them as to the adverse effects on children of parental conflict is the key to providing the tools by which enduring agreements in their children's interests can be reached.

Pie in the sky? Look at the Australian model of education, early intervention and ADR and think again.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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