A different but better family justice system?

family law

A tweet I read on Sunday re-opened for me a subject that I have touched upon here before: the family justice system has many critics, but is it actually possible to come up with something better?

We hear it all the time: from the anti-family justice brigade, who allege that the system is corrupt and should therefore be done away with, to the less hysterical critics, who assert that a court of law is not a suitable place to resolve family matters, which should be dealt with in a more appropriate forum. For me, however, there has always been a fundamental problem with a non-court-based system.

To explain, I need to go back to basics.

There are only two types of family disputes: those that the parties are able to resolve by agreement (whether directly, via lawyers, through mediation, etc.), and those that the parties are not able to resolve by agreement. Obviously, it is only the latter that are a problem.

How are such disputes to be resolved? Well, I can think of only one way: having a third party adjudicate the dispute and impose a binding decision upon the parties to the dispute. Now, of course the third party need not be a judge/court – it could be anyone with the knowledge and expertise required to come to a sensible decision. However, if the ‘rules’ governing such disputes are to be set out by the law (more of which in a moment), then the obvious adjudicator is a judge, and the obvious forum is a court.

But the adjudication is only part of it. The other part relates to that word ‘binding’. What if one of the parties does not accept the decision of the adjudicator, as is likely to be the case in many disputes? If nothing is done about that, then the dispute has simply not been resolved, and we are back to square one.

The answer, of course, is that the decision of the adjudicator must be enforceable.

OK, let’s stop there for a moment. As I mentioned above, many of the reasonable critics of the family justice system say that a court of law is not the appropriate place for a family matter to be dealt with, especially if it involves children. They have a point: for example, very many family cases are dealt with in the same building as criminal cases, which certainly doesn’t seem right. Leaving that aside, courts are intimidating places for many, even if they are certainly less intimidating than they were when I began practising back in the early 1980s. And judges can be intimidating too, although family judges are rather more approachable than judges dealing with other matters. The critics suggest that family disputes be dealt with away from the courts, by suitably trained lay people.

But how can the decisions of those people be enforced? What is needed is a mechanism whereby sanctions can be imposed upon the party who is refusing to comply with the decision.

And this is the fundamental problem with any non-court-based system. Only the courts possess the power to impose such sanctions. And this is how it should be: sanctions for non-compliance with decisions may be very serious, ultimately possibly affecting the liberty of that party – a court of law is the only appropriate place for such serious matters to be dealt with.

I suppose there could be some sort of two-stage system where the original decision is made by an out of court forum, and the matter only goes to the court for enforcement purposes. However, for the very same reason of enforceability, the rules governing family disputes need to be enshrined in the law. And that being the case, obviously the more legal training and experience an adjudicator has, the better. And the people with the best training and experience of all are judges. In other words, a system with non-judicial adjudicators would, as a generalisation, be a second-rate system (remember here I am only referring to those cases where the parties cannot reach agreement – I make no criticism whatsoever of those, such as mediators, who help people resolve disputes by agreement).

For the sake of completeness I should mention arbitration which is, of course, an out of court system of resolving disputes. However, it is only partially ‘out of court’: it does of course use the same rules of law to make its decisions, and those decisions must be approved by the court to be enforceable (most arbitrators are highly-trained lawyers, and some are former judges).

To conclude, I don’t think that it is possible to come up with a different but better family justice system. However, that is not to say that we should not continue to do everything we can to improve the system we have. To quote (I assume) Lord Justice Jackson in that tweet I referred to at the beginning of this post: “The system is not perfect but can anyone think of a better one?”

Photo by Jamie Henderson via Flickr

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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4 comments

Ian Pitt - February 13, 2018 at 2:52pm

Its simple, default to 50/50 custody of children between both parents. Anything else would been to be battled over. Why oh why is this not the case! Stop the war on dads NOW.

rumble - February 13, 2018 at 4:57pm

I have a few suggestions. Non compliance means non compliance . Full and frank disclosure, means that . It does not mean let us just ignore it and def not agree to issue any penal notices with evidence. Bankers evidence act, if evidence is given, then do it. If it is appealed, dont slap charges on the litigant in person, who is there because she is struggling, but enforce the non compliance, give the bankers evidence act. Get confirmation of cars from DVLA with evidence. The issues are that if you are a litigant in person, you really have no voice. The barister is to lead even if not their case. They dish out pages of lies and the litigant sits there getting more and more frustrating as the judge accepts what the barister has given. No matter what you , no matter what you say, you have no hope in hell if you are representing yourself. You dont get a legal services order even if he is very rich, because they are frightened. In fact evidence as long as your arm for diversions and you are not even granted anything for help with cms. Fair enough if you have the means to pay, and your partner is not really wealthy . BUT HEY HO . Who takes notice of litigant’s in person . ABSOLUTELY NO JUDGE. I can’t wait to get my teeth into the report for judicial review when it is all over. As the subject matter, means nothing. The mood and hardship you are in, means nothing . The system is designed for criminals. In civil tolata with family, it is ok to lie and lie and lie if you are lucky enough to get your application first. No burden of proof needed. In the public interest. Full and frank disclosure means nothing in family matters as everybody is scared stiff to actually do anything and then they say it is not in proportion. It is the most frusting thing i have ever done, and it is the most unjust. Public interest is, if you cant afford representation you will get screwed . This is fact. Sorry but it the truth.

rum - February 13, 2018 at 6:22pm

AS for child proceedings. Get rif of Caffcass and Nyas as they lie . Or if found lying with evidence, do not wait until the final hearing and keep them representing children. Would an adult keep paying for a service that is rubbish and not just ? would you expect some re-dress if you complain ? or would you be expected for them to continue with their service , whatever industry and you to suck it up until a year or so later, and then you can re-dress their lying. It is a sham . Too much weight and not enough trials. Supervised contact normally sorts it out. IF BAD they will never be able to contain themselves and then they end of hanging themselves. Not ideal but anything must be better than having no complaint system for a party that represents children’s feelings, but actually ignore them and decide for themselves. It is the most horrendous system i could ever imagine the great british justice system accepting . It is not just about moaning if things dont go your way. They went our way. But the lies and the twisting from so called professionals was just unacceptable and they need naming and striking off . Horrendous that they have this responsibility, and allowed to continue to represent , a complaints system for them is desperately needed . Mine never ever merited a hearing apparently. Only merited a child crying and shaking on return home. Rest my case

Mr T - February 14, 2018 at 11:29am

Couple of must have’s

1) Take money out of the equation (no linked CMS, solicitors or barristers unless funded by state)
2) Acrimonious splits (the clue is in the word!) need a psychologist or at least a PA specialist involved
3) Get them out of the court but with a family judge in a less stressful environment.

Three massive improvements within minutes of reading your post.

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