Is it the duty of the family courts to support families?
By:4 commentsMay 24, 2017
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.
May 24, 2017
Categories: Family Law