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Autonomy and family justice [2016] CFLQ 133
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Alison Diduck Professor of Law Faculty of Laws University College London
Keywords: Autonomy - ADR - justiceFamily law's promotion of autonomy and its 'settlement mission' have combined to create an imbalance between public and private justice in the family justice system. In the new system autonomy has become more than simply one aspect of justice to be considered alongside for example fairness equality and the rule of law; it is becoming the very essence of family justice. I explore here how the idea of autonomy-as-justice is expressed in two ways in the new family justice system. The first is structural and procedural. It relates to the creation of an autonomous system of dispute resolution that includes mediation arbitration and provision of information hubs. This autonomous system marginalises formal law and legal principle and prioritises only autonomy; it runs parallel with and separate from the formal system. The second expression relates to assumptions about the type of autonomy that must be activated and permitted to flourish in family justice. It is an impoverished and gendered conception of autonomy that is unrealistically opposed...
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