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

Date:2 DEC 2010

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.