Forget the soundbites: Lord Justice Wall is the herald of family law reform

Earlier this week I appeared on BBC Radio Four’s popular PM programme to discuss a speech made by the President of the Family Division, Lord Justice Wall, to Families Need Fathers. Certain remarks of his have been picked up by newspapers – but the reports have omitted what I consider to be some of the most important and significant aspects of his speech, for lawyers and for clients.

The media picked up on one comment from a lengthy speech, in which Sir Nicholas said: “As a rule of thumb my experience is that the more intelligent the parent the more intractable the dispute”. He was speaking in relation to post-separation parenting and didn’t hold back, adding further fuel to the fire by saying: “Separation is, of itself, a serious failure of parenting”.

Sensing controversy from the most senior family judge in the country, the media had a field day. Indeed, these are extremely caustic comments within a speech that was deeply critical of parents warring over contact and residence disputes involving their own children. In another passage he states that: “separating parents who are unable to resolve issues between themselves rarely act reasonably”.

PM presenter Eddie Mair posed two questions to me: Is it really the case that separation equates to a failure of parenting? And do intelligent people make things worse?

I answered that of course this is not the case. I believe these statements are likely to be distressing to the vast majority of couples going through a relationship breakdown and far from representative of the norm.

Divorced parents don’t equal bad parents

Broken marriages signify the end of a couple’s relationship with each other. They don’t automatically mean the parents are rubbish at looking after their children. It simply means they are human and as fallible as the rest of us. No one can honestly say they have a perfect marriage (for a start, who sets the standard?). Many unhappy couples stay married but cause as much harm to their children in a fractured relationship as those who have had the good sense to agree it is over, precisely to avoid further trauma to their children.

I believe that exercising this choice does not make couples bad parents. Nor do I believe that intelligent people make things worse. The statistics, which were lacking from this speech, bear this out.

I checked the figures and found that divorce rates are actually falling, and that for all those couples who did divorce in 2009, more than 85 per cent settled their issues out of court. For those who did issue legal proceedings, the vast majority settled more or less straight away. Only a tiny fraction of cases are fully litigated and fewer still end up being heard in the rarefied atmosphere of the High Court or Court of Appeal, where Lord Justice Wall and his colleagues can be found.

If they do reach those heights they are certainly the most difficult cases, and this perhaps accounts for Sir Nicholas’ views. Seen through this prism, his view of the types of couples in turmoil will most certainly be different to mine and those of other professionals working at the coalface. We see things far differently and I am proud of the fact we help divorcing couples resolve their issues and maintain healthy relationships with their children. It is no coincidence that at Stowe Family Law, the majority of cases that go to court do so because of money rather than children. I estimate the ratio to be at least 60:1. Of those that do go to court 99 per cent will settle across the board, whether in relation to children or money, before a fully contested hearing. This is due to the professionals involved – a fact that Lord Justice Wall did pay tribute to – and because the system is designed to encourage settlement.

As a consequence of this Lord Justice Wall’s speech did attract a number of comments. One reader from Oxford heard my Radio 4 interview and contacted me:

Thought you gave a good account, although it seems a little obvious to me that the guy who made the comment re. “95 per cent of cases” that he saw, which was quite the opposite of what you saw, was indicative of the fact that he would only see the worst ones anyway as you and others will have settled before they get to the really nasty stage!

During the radio interview I tried to widen the debate and touch on some of the very important signals that I felt Lord Justice Wall was sending out in his speech.

So what did he say?

The Family Justice Review

Firstly, he spoke about the Family Justice Review set in train by the previous Government and currently underway. It promises to bring about huge changes to law, practice and procedure. These radical and tough changes are designed to streamline the system and resolve disputes, with Lord Justice Wall saying quite ominously that: “the government is likely to invest heavily in the outcome”.

Now, a question for you dear reader: which illustrious and modern-thinking lawyer or judge do you think is heading this review? Whose recommendations, as Lord Justice Wall said, “are likely to be radical, there are no sacred cows”?

You may (or may not) be surprised to learn that he is neither a leading judge, nor a family practitioner, nor a family law academic, but is in fact an economist. This finance man is a former adviser to Margaret Thatcher and a shrewd, tough businessman who enjoyed an illustrious career at Marks and Spencer. He is a man held in extremely high regard by the City…step forward one David Norgrove.

Under his stewardship and aided by children specialists, including the highly regarded judge Mr Justice McFarlane (and no ancillary relief specialists that I could see even though this topic is also within their remit), there will be a far reaching family justice review, the outcome of which will be heavily invested in by the Government.

Legal aid to be abolished

I think we can all see where this will lead. To again quote Lord Justice Wall’s speech: “You do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished; that long and protracted contact and residence disputes will become things of the past”.

All the signs suggest that legal aid is going to be abolished for private family law cases. And despite the judicial review going on right now concerning the Legal Services Commission’s actions in slashing legal aid franchises across the country, the obvious next step is to abolish it altogether.

But how will that work in practice? Will people be expected to represent themselves in court? I doubt it, this is all likely to change too – and the clues as to how came thick and fast in Lord Justice Wall’s speech.

Compulsory mediation as a starting point

To make his case for radical change and the resolution of child disputes outside of court, Sir Nicholas’ speech concentrated on criticising everything he thought was wrong with practice and procedure in family law cases.

Having socked it to warring parents, he did the same to the overloaded court system. He criticised court management, the fact that numerous different judges might be involved in a case, the problems with continuity and length of proceedings and the impact all of this has on families.

Sir Nicholas gave another strong clue when he criticised the adversarial approach of the courts and the problems of enforcing court orders. He doesn’t think sending a parent to prison for disobeying a court order solves the problem. In the 1990s he chaired a group which “reached the conclusion that what was required was education rather than punishment”.

I largely agree with him. But I would not consider the change of residence of a child to be a last resort. If a parent is implacably hostile to the other parent I would remove any children from harm’s way as fast as possible.

So what form will the family law system take? I think as a starting point it is very likely going to involve compulsory mediation, even though this process certainly isn’t as successful as one may wish, and may never be if introduced before a couple is through the pain barrier of divorce.

Judicial intervention is helpful. Most cases do settle once proceedings have begun because most judges are very good at giving both parties a nudge to settle their disputes. They wield both the carrot and the stick.

The case for tribunals

I believe Lord Justice Wall is signalling a less intimidating and hostile atmosphere than the traditional, judicially-controlled courtroom. He seems to be heralding a friendlier approach that takes place within a tribunal where the chairman is legally qualified and has the title of Judge.

There is a history of unrepresented litigants appearing in their droves before tribunals for which legal aid is unavailable. These include employment and DSS tribunals, and the infamous Child Support Appeal Tribunals (CSAT).

These tribunals are generally more restricted as to what decisions they can make. Unlike family courts they may only interpret regulations and apply them to the cases before them. I resigned following the acutely frustrating experience of being appointed as one of the first CSAT chairs, because I was so hamstrung by the regulations imposed. Although I was enthusiastic at the outset, I found that I could not administer justice. I was only empowered to administer the regulations and try to enforce a mind boggling formula. When the parties discovered this they used to both leave the tribunal as dissatisfied as when they had arrived. This must not  be the case if any new tribunal is to succeed.

So if there is to be a move to the tribunal structure, which I can see does have procedural advantages, we need fair, clear law that the tribunals can administer. If this is to happen the law needs to change and become far more exact.

The legal changes required

It does appear that changes to the law are afoot. Lord Justice Wall  appears to approve of shared parenting, saying that the critical question is not so much the division of child’s time between their parents, but ensuring the role of each parent in a child’s life is given its proper importance.

In order for there to be a presumption of shared parenting (as opposed to equal parenting) Lord Justice Wall stated on several occasions in his speech that Parliament needs to enact the necessary legislation.

So there we have it. Parliament is likely going to change the law. And I think this speech gives some clear indications as to how it will change.

My guess? There will probably be a presumption of shared parenting as a starting point. A tribunal will decide in the case of disagreement (assuming mediation or other alternative dispute resolution methods fail) how shared parenting will work. There will be no more arguments about whether both parties should parent a child, as both will have that entitlement as a starting point. Everything will be approached from a less hostile, more user-friendly and cheaper perspective. This approach will focus on allocating the time children will spend with their parents based on the assumption of shared parenting.

Interestingly, the tribunal system is also likely to apply to extended family members such as grandparents.

Private law legal aid claims will be a thing of the past and the judiciary will be freed up to deal with public law cases, which are expensive and time consuming and for which legal aid will continue to be available.

What do I think about all this radical stuff? In principle I like it. I think a shift in the law may fundamentally alter the approach people take to sharing their children with a former partner.

Subject to the tribunal system being fair – and that is a tough one – bring it on!

Image credit: Fuzzy

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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23 comments

Graham - September 26, 2010 at 3:19pm

Subject to the tribunal being fair, I agree with you. However, given that similar intractable cases went before Solomon, I am not sure the criticism will ever stop. That said I do think the current system is a bad one with bad Judges and Cafcass officials creating more problems then they solve.

Graham - September 26, 2010 at 8:30pm

Proving the prejudice amongst lawyers (Judges). The above post would be ruled out by them as a bad person as I said ‘then they solve’, rather than ‘than they’.

Graham - September 26, 2010 at 8:31pm

I meant rather than ‘than they solve’.

Lasse - September 27, 2010 at 2:40pm

Yes, bring on the changes but the changes should be a result of the Parliament’s wishes not the judiciary’s. The presumption of shared parenting is absolutely key.

Margaret - September 27, 2010 at 3:12pm

Agree that change is required, and most importantly, lawers/barristers should not be allowed in cases of child contact. They only inflame already difficult relations between the two parents. The problem is that if the mother, for example, goes to mediation, and still will not allow the father meaningful access, what then? Mediation only works if both parties enter into it with a willingness to compromise.

JamesB - September 28, 2010 at 7:32pm

Agree with all of the above comments. Especially Lassee’s about shared parenting being a good thing, provided it is not just a name change from contact orders to shared parenting orders. The starting point has to be 50:50 in terms of time with each parent. Else we have the same problems re-occurring. I do also agree with the Judge that is about doing least damage and all involved must try to remember that. Used to be there was a head of the house who made the decisions. Feminism has brought us to this mess. What to do when the man and wife don’t agree on the upbringing of the children? Talk? Seems like this is the end result of feminism, intracticable conflict and was why Winston Churchill voted against giving women the vote. The world would be a lot better if Men and Women didn’t argue so much and not having a head of the household is causing a lot of arguments. Neither a Judge nor a tribunal is well placed to fill this role. Yes to giving women the vote, but for a radical approach here I agree with Sharia Law and the Children Act should be amended to make sure that a Man’s evidence, all other things being equal, counts for the same weight as two women’s.

Peter H - September 29, 2010 at 4:27pm

It is not difficult to see, from JamesB’s contribution, why the difficulties faced by children in getting a fair share of each parent have persisted. I wonder if it beyond participants in the debate to consider the following:
1. Neither gender has a monopoly on reasonableness, nor, consequently, unreasonableness.
2. Chilldren, especially young children, want to have a good time with both their parents whether or not their parents are living together or, if they lare iving together, in the same room at the same.
3. This want coincides, happily in my view, with the child’s need to affirm it’s own identity as the foundation of developing, over a number of years, it’s own, and hopefully, separate identity.
4. However a separation between parent and child occurs, that separation interferes, I would say adversly, with the processes of a child’s development.
5. That interference involves a cost both to the child, as a child and later as an adult, and to society.
6. If you want a society where a significant proportion of the adult population do not ‘know’ one or other of their parents, part of the foundation of their own identity, then you will not want the system of family justice to change.
7. Conflict, in the sense of disagreement, is essential to changes that bring about progress. The resolution of conflict involves NOT seeing the conflict as mere ‘talk’. To resolve a conflict it is necessary, at base, to listen, reflect, and then to respond to what is said. JamesB seems to want ‘equality’ to dominate as a way of resolving a conflict! Leave it alond JamesB and move on!
8. No argument based on the assumed qualities, often supported merely anecdotatally, of one gender as opposed to the other is ever goning to produce a better outcome for children in a separation conflict. It is time, I believe, for those who use such arguments, to abandon them.
9. The Family Justice Review is an opportunity to make changes beneficial to children now and in the future. It is arises out of a desire to reduce the frontline costs met by the state. There will be less money spent on the system.
10. The question is not who is or has been in the right or in the wrong. The question is can we get a better system for less money?
11. The answer must be ‘yes’. It will not be achieved by administrative tinkering but by a shared committment of parents, encouraged by the justice and education systems, to allow children the opportunity to experience the foundations of their existence, their identity, as part of the process of developing their own place in the world.
12. Compulsory mediation, provided mediators have the right skill set, is part of a progressive move with a good prospect of reducing the number (not elimianting) the number and length of conflicts.
13. There needs to be enough mediators with a simple and transparent process to ensure that from application to resolution (even if it is only an interim resolution) is no more than one month. Speed and certainty are of vital importance to the child.
13. An enforceable equal residence order in the absence of parents agreeing a different division of time, would give the mediators a significant tool in securing an agreement between parents. The less discretion the mediator has, the fewer and less complex the arguements will be, the greater the concentration of parental energies, and the more rapid the outcome.
14. If any parent needs a lawyer to represent them, then they also need a judge and not a mediator. So no rights of audience for lawyers in front of mediators.

I make these points in part from my experience as a lawyer, a part qualified psychotherapist, and as a litigant parent in contact proceedings since 1993 for two children from separte relationships.

I hope someone feels they benefit from reading them.

Marilyn Stowe - September 29, 2010 at 8:14pm

Thanks so much for your contribution. It must have taken a great deal of time and effort and I’m very grateful you took the trouble to contribute as you have.

Roger Eldridge - September 30, 2010 at 4:13pm

I also read the full speech of Justice Wall and for me, as CEO of the Family Rights & Responsibilities Institute, I was pleased that at last a senior judge had spilled the beans in public how the courts get their jurisdiction in family law. When he said that “Separation is of itself a serious failure of parenting” he is not only correct but explaining why the courts feel they can make orders that supervise both parents. There is no creditable social research which shows that children benefit from their parent’s separating. It all shows their outcomes disimprove. When a couple marry they vow to put the family and the children before their own selfish interests. Choosing to separate is a decision made by an adult for their own purposes and one where they do this rather than stay together for the children and the family as a whole. In proper legal terminology this is called desertion, ie they abandon their family duties and is a clear act of selfishness on behalf of the spouse. If the other spouse doesn’t want to end their marriage they are deserted, not “separated”. The deserted spouse retains control of the family assets including the most precious, the children. The deserter puts themselves outside the family and lose control over everything. Furthermore they are held to their duty to maintain the family home and all that is left of the Family after they have chosen to put themsleves outside it. When Justice wall talks about “Separation” he is talking about where the deserted spouse is advised to self-identify as separated rather than deserted. Where both spouses voluntarily separate they are both acting selfishly and the State in the guise of the courts is obliged to step in and seek to take the place of the parents. Anyone who cares about children and the state of society must demand a return to the courts doing the job the law requires of them and that is protecting families by deterring one of the spouses from deserting.

JamesB - October 1, 2010 at 10:00am

I have read all that and digested it. I did agree with your point 13, very good that.

Indeed, I may even agree with all of your post. In defence of my previous posting, it is a criticism, along with the Judges of so many suffering children caused by the inability of parents to talk and listen and I agree with the bottom posting on that too. Except to say the person who is not with the children is not always, or indeed, even usually the troublemaker, or person bringing an end to it. Courts investigating fault is too difficult, please let us not go back to that.

Personally I quite like (really like) the idea of relationship classes at school. Provided of course that they are about respect and not dominated by right wing or left wing or church ideology.

JamesB - October 1, 2010 at 10:06am

My point about equality was that perhaps the ambitions we all aspire to as per my last posting are a bit over optimistic and that if not possible then a head of the family might be more preferable than some lefty social worker that neither side knows.

Personally, I quite like the film The Last of the mohicans and the way the Hurons had a village elder for this sort of thing and hope the tribunals are a bit like that and people can feel they are fair and part owned by them. I hope the relationship classes can make them used less and less often. But, that is my point, it’s like communism is an ideal system but people are often irrational and thus why I think the tribunals need to be fair and like a village elder and relationship classes are needed at school.

JamesB - October 1, 2010 at 10:10am

Plus 50:50 shared parenting as a starting point please. There you go, rule of 3. 3 point way to a better future.
1. Shared parenting starting point.
2. Decent tribunals.
3. Decent Relationship classes at Schools.
All the best to all, I’m off to lobby for these 3 things, hopefully won’t be too long before we have them then I can do other things, like enjoy my 5 children.

JamesB - October 1, 2010 at 10:12am

Well, 2 children who live with my ex and 2 with my g/f who are hers (she is a widow) and 1 on the way, we do not live together and are LAT at the moment.

Roger Eldridge - October 4, 2010 at 8:05pm

James, like so many others and the entire legal profession, it would appear, you are guided by myths that have no basis in fact. The first “big lie” is that children are OK if the parents “separate” amicably and share residence 50-50. Whist there is some evidence that this is far better than the child being with the mother and the child being forced to disrespect the father there is NO evidence that shows that children do better than when the adults acts selflessly and stay together. The evidence is all the other way round. The second big lie is where you claim, “Courts investigating fault is too difficult,” presumably because the poor judges are forced to listen to endless affidavits and replying affidavits being read out by counsel for both Spouses blaming each other for the break-up. In reality a judge only needs to know which Spouse sent the other one a letter asking them to come home and resume their duties. If the other Spouse didn’t come home they are the deserter and they get nothing. What children need is not what you suggest, ie making it easier for the ADULTS to “separate” which is always harmful for the children but for the adult who has abandoned them to be kept away from harming them further. The law has always – until the last forty years of madness – worked on that principle which DETERS adults acting selfishly. If you don’t do that and you allow the courts to benefit the trangsressors certain harm is done to the children. How could any system which claimed to care for children and justice do that?

The good news is that despite the work of the so-called ‘reformers’ the law actually supports this. What must be done by those who really care about children and the future of civilsation is ensure that the law is properly inmplemented.
God bless, Roger Eldridge, CEO Family Rights and Responsibilities Institute, Boyle, Ireland.

JamesB - October 5, 2010 at 10:00am

I do not like the idea of women (or men) being forced to live with abusive partners. I do accept though that this can leave unwell and unhealthy people to be abandonned for being unwell by their spouses through no fault divorce and note that New York did go against this. Also as a Christian I do find it a difficult question. I do think it is too late for us to go back now and that marriage as a lawful institution (rather than a contractual agreement) is gone now for us though.

JamesB - October 5, 2010 at 10:01am

Living in the UK.

JamesB - October 5, 2010 at 10:01am

God Bless You too.

Roger Eldridge - October 5, 2010 at 11:17am

James, no-one is talking about forcing anyone to live with a violent Spouse. Quite the opposite, a spouse who uses violence to get their way is as guilty of having abandoned their duties to work with the other spouse for the benefit of the children and the family as a whole as any spouse who actually leaves. However if the courts don’t identify the spouse who has abandoned their duties the family and the children suffer. Society also goes further downhill as children learn that “crime pays”. What we all need is government support for Reconcilliation services which help heal wounded families, not more mediation which is designed to dismantle them as quickly as possible. God bless, Roger

Victor Rones - December 23, 2010 at 1:47pm

I have complained to LORD JUSTICE WALL about JUSTICE AND RIGHTS.ABOUT my 8 year DAUGHTER.

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