Spotlight
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
Practical tips for spending Christmas Day without the children
Christmas is an emotional time regardless of anyone’s family situation.Whilst some separated parents remain able to put their differences aside and spend Christmas Day as a family, it is more...
Increased transparency in the family courts to be the way forward
On 29 October 2021 the President of the Family Division, Sir Andrew McFarlane, published a report with his conclusions on the issue of transparency in the family courts. His view is clear: it is...
Specialist support for LGBTQI+ victims of domestic abuse is needed
The Domestic Abuse Commissioner has launched a new report produced by the charity Galop which shows the need for more specialist support for LGBT+ victims of domestic abuse.The summary of...
Developing and Maintaining Relationships for Care-Experienced People report published
The Developing and Maintaining Relationships for Care-Experienced People Roundtable brought together diverse voices from academic, lived-experienced, professional and policy making communities in the...
NFJO report on adult characteristics and vulnerabilities in private children proceedings (Wales)
The Nuffield Family Justice Observatory have published a report by the Family Justice Data Partnership, a collaboration between Lancaster University and Swansea University, that exposes the...
View all articles
Authors

Hayley Trim's Analysis: Welfare first - intractable cases and the Family Justice Review

Sep 29, 2018, 17:37 PM
Slug : HayleyTrim02102010
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Dec 2, 2010, 10:20 AM
Article ID : 93211

Hayley Trim, Family Law PSLWhen I was considering the case of L-W (Children) [2010] EWCA Civ 1253, I did not have the benefit of Coleridge J's speech to the ALC on 26 November. I agree wholeheartedly with him. Listening to the voice of the child does not mean taking what is said at face value and implementing their wishes to the letter. Decisions must be based on the child's welfare, not just what they want - that is after all the basis of the Children Act. Taking an authoritative stance is not always easy, but it is something parents (and the courts) must do. This reminded me of the words of Thorpe LJ in Re S (Contact: Intractable Dispute) [2010] 2 FLR 1517 where the first instance judge had made each contact subject to the condition that the children had to choose whether or not to go: "whilst it seems on the face of it to conform with the children's wishes and feelings, in reality it burdens them with a responsibility that they should not have to bear" and children "have to have their lives regulated by adult judgment."

And firm leadership is needed in the family courts too, Coleridge J pointed out. For many parties after a lengthy battle, delayed Cafcass reports, expert evidence and numerous hearings, getting a final court order is all too often far from the end of the story. Court orders need to carry more authority and therefore enforcement must be prompt and effective. Perhaps Coleridge J's "three strikes and you're out" approach could be applied, with a transfer of residence taking place much earlier on where a suitable alternative home can be provided, subject always to the child's welfare.

Enforcement and the efficacy of the family court was a major theme of the All Party Parliamentary Group on Family Law and the Court of Protection meeting on 30 November. Members of the panel of the Family Justice Review, David Norgrove, John Coughlan and Baroness Ritchie faced questions from an eclectic audience and confirmed that concern about implementation of court orders is one of the issues that the Review is addressing. However to some disappointment, matters such as transparency and substantive ancillary relief law are not within the remit of the Review. It was suggested that in the context of trying to take parties out of the family justice system by encouraging mediation and ADR generally, the uncertain state of the law on ancillary relief increases tension and animosity, which in turn impacts on children-related matters. The possibility of no-fault divorce in some circumstances will however be looked at, which in my view is a positive move in trying to get separating couples off to a good start.

The emphasis of the Review is on private children law but the range and nature of public law orders, case management, the role of expert evidence, responsibility for care planning, co-ordination and workforce reform in public law matters are also under consideration. It was noted that whether such proceedings are (or should be) inquisitorial or adversarial is academic if there is judicial continuity, and the panel recognised that this is vitally important in both public and private children cases.

The Review seems prepared to look more radically at the overall system, particularly in private law cases, but without undermining the legislative basis of the Children Act 1989 which, especially in terms of the paramountcy principle, is seen as a paragon.

The approach of foreign jurisdictions is being considered, and of course economy as well as efficiency as a whole, reducing delay and promoting tighter case management.

I suspect that it is in this regard that the Review's recommendations are most likely to be implemented. Giving mediation a more central role might be a less attractive choice if it did not generally prove cheaper than litigation; and proposals that may be extremely worthwhile are likely to fall by the wayside if they require substantial funding. The panel seem very alive (or resigned) to this reality. 

It is a hard time to be reviewing a system that impacts on the lives of so many. I can only hope when it comes to making and implementing the recommendations that the welfare principle of the Children Act informs and dominates the cost-cutting, and that a cohesive system is not undone by cherry picking money-saving initiatives. The job of the Review panel is, like the court, to consider the evidence, listen to the views of interested parties, and come to decisions based on the welfare of the system. But their recommendations will ultimately have no binding authority - far less even than an order of the family court.

The Review is still taking comments and suggestions from anyone who wishes to contribute. To the astonishment of some of Tuesday's audience, Mr Justice Andrew McFarlane is the sole (albeit outstanding) family practitioner representative on the panel. If you have a view, speak now.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

Categories :
  • Articles
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Load more comments
Comment by from