Is it the duty of the family courts to support families?

family law

Labour and Conservative election manifestos

I had previously promised not to make any further mention of the general election here, but there is quite a lot relevant to family law contained in the election manifestos of the two main parties (in England and Wales), so I thought I should make some comment upon what they have to say.

In their manifesto the Labour Party pledge to introduce a no fault divorce procedure, something that many family lawyers have been calling for for years. At the time of writing it appears unlikely that Labour will be elected to govern and so the pledge may be academic, but at least it is encouraging that one of the main parties has taken up the baton of no-fault divorce. Labour also that say that they “will immediately re-establish early advice entitlements in the Family Courts”, whatever exactly that means. I understand that their draft manifesto called for an “immediate reintroduction of legal aid for private family law matters in the courts”, which was a lot clearer, but that wording was changed. I wonder whether they got worried about the cost of reintroducing legal aid? If Labour do get elected, it will be interesting to find out just what “early advice entitlements” entail.

Moving on to the Conservative Party, apart from a pledge to introduce a Domestic Violence and Abuse Bill and create a domestic violence and abuse commissioner, their manifesto is even less specific, saying:

“… we shall explore ways to improve the family justice system. The family courts need to do more to support families, valuing the roles of mothers and fathers, while ensuring parents face up to their responsibilities.”

That first sentence could mean anything, but is probably a reference to proceeding with the green paper on family justice that Justice Secretary Liz Truss has promised previously.

But it is the second sentence that concerns me. As a well-known family lawyer pointed out on Twitter, courts administer law, they don’t provide ‘support’. That is not their job, and to say that it is suggests to me either a misunderstanding of the function of the family courts, or an intention to give the courts an additional function, for which they are not designed.

OK, it is of course true that certain professionals involved in the family justice system will seek to support families. In particular, that is a big part of the job of social workers. It could also be said that court welfare officers support families. But judges do not. They try to make the best decisions for the benefit of the members of the families involved in the cases before them, but they do not try to support families per se.

And what does ‘support families’ mean? It suggests to me trying to help them stay together. That is definitely not a function of the court. If it doesn’t mean that, it does at least suggest supporting all of the members of the family. However, and obviously, courts often have to make decisions that contradict the family expectations of one party. Giving the court a duty to support all members of the family would be meaningless.

That brings me on to the next part of that second sentence: “valuing the roles of mothers and fathers”. Well, it may be news to the Conservative Party, but the family courts have long acknowledged the benefit to children of having a full and continuing relationship with both parents. Is this a veiled reference to ‘beefing up’ the shared parenting presumption, as proposed recently by Conservative MP Suella Fernandes? If so, then that is really about supporting children, not whole families. In any event, the introduction of the presumption did little to change how the courts approach cases in practice, and I doubt that any further tinkering with the presumption will do much either.

Then there is the last part of that second sentence: “ensuring parents face up to their responsibilities”. This comes across as a warning, which seems a little incongruous with the idea of supporting families. I’m not really sure what ‘responsibilities’ it is referring to. It can’t be the responsibility to maintain, as that is not (usually) a matter that is dealt with by the family courts. Does it refer to the ‘responsibility’ of the ‘custodial’ parent to ensure that the child has contact with the other parent? It’s not at all clear, but my best guess is that it is a reference to ensuring that orders are enforced. However that, of course, is to do with administering the law, not supporting families.

The family courts do, of course, indirectly support families, by resolving disputes between parents. However, supporting families is not, and should not be, the primary duty of the courts.

Photo by Dennis Hill via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Stitchedup - May 25, 2017 at 10:15am

The family courts should be family friendly. They should work to minimise conflict, protect from plundering family assets, encourage dialogue and signpost to support services such as family mediation and counselling. They should also reign-in unscrupulous solicitors and report solicitors to the law society if found to be encouraging false allegations or the like. Just because we have an adversarial system doesn’t mean we have to have total war and the collateral damage that goes with that.

John Bolch - May 25, 2017 at 2:26pm

Yes, they do pretty well all of that. I can’t recall a judge reporting a solicitor to the Solicitors Regulation Authority but, as the SRA say: “Although solicitors must fearlessly advance their clients’ cases, they are not “hired guns” whose only duty is to their client. They also owe duties to the courts, third parties and to the public interest. Breach of those duties can give rise, for example, to wasted costs orders or to findings of misconduct.”

Devil's Advocate - May 26, 2017 at 12:57pm

Excellent well said.
Antagonism in all respects would be greatly diminished if responsible and engaged equality of parent rights were enacted and not assumed as in England and Wales. It would be mandatory to react responsibly rather than sqawking like headless chickens as now. My God there is less fighting in a school playground than in family courts of today.

WISEACRE - May 25, 2017 at 8:18pm

I suppose it is inevitable that you, as a lawyer, and the “well known family lawyer” you reference, should adopt a legalistic approach to reading political manifestos but in much the same way as you criticise the manifesto drafters for not understanding the law with the greatest respect I would criticise your analysis on the ground that you do not fully understand the political process or the way manifestos are meant to be read by the non-expert.

You are viewing the document through a very narrow prism. I can understand perfectly well what the Conservatives have in mind. Though it is a bit unclear the main thrust is – to make the law and the way it operates more family friendly. It is probably inevitable that the ideas are a bit of a rag bag but I don’t find helpful to niggle away in such a negative fashion

I dispute your claim that the courts “do pretty well all of that” in response to “Stichedup” [whose name speaks volumes]. I fear you are complacent. There are too many individuals – children, parents, grandparents, other family members, expert witnesses – who are left dissatisfied by the experience of the Family Courts. One does not need to be Christopher Booker or John Hemming to have concerns! Leaving aside my own families’ experiences I have the benefit of scores of individual cases handled as a voluntary case worker for MPs, work carried out following retirement as a senior civil servant. So I know whereof I speak, John.

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