A new dawn for family law – Sir James Munby makes a call for reform

Families have changed so much in Britain, our family law and courts need to catch up. Sir James Munby delivers a thought-provoking call for a one-stop family court in England & Wales.

“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be.”

This, in essence, was the message contained in an important speech given by the President of the Family Division Sir James Munby at the University of Liverpool on the 30 May. The message is not new, but when it is stated so clearly by the President of the Family Division then we must all surely take note, including the policymakers in Westminster. Sir James, of course, is due to retire next month, but his passion for reform clearly goes well beyond that point, as it will obviously be some time yet before we see the sort of family courts he envisages.

The subject of Sir James’s speech was, in fact, the question: What is family law? It is a simple question, but not necessarily one with a simple answer.
Before considering that question Sir James addressed the logically prior one: What is the family? The answer to that, he explained, is rather more complex in contemporary Britain than it was previously. Whereas not so long ago what people understood as the ‘family’ was simply a mother and father, who were married to one another, and their natural children. There were few variants upon this that would still be considered a ‘family’.

Now, as Sir James explained, the family takes an almost infinite variety of forms, including unmarried couples, same-sex couples, single-parent families, step-parent families, families with children conceived by artificial donor insemination, and families with children born as a result of surrogacy arrangements. This new reality, said Sir James, is something that we should both welcome and applaud.

Moving on to the question of what family law is, Sir James summarised it as being primarily concerned with three things: acquiring and terminating a certain status, for example, being married, or having parental responsibility for a child; dealing with the consequences of relationship breakdown; and the regulation of the family finances, typically following the termination of relationships, whether in life or on death.

Sir James then moved on to the real meat of his speech, in which he outlined four problems with the family courts as they are currently structured:

Firstly, the current complex and varied procedures (for example, under different statutes, depending upon the exact nature of the issue being dealt with) for addressing the three central concerns of family law (status, relationship breakdown and the family’s finances) “prevent the family court ever addressing the family’s problems holistically and in a simple ‘one-stop’ process.” This fragmentation of the family court’s processes, he said, “can lead only to delay, added cost and, worst of all, additional stress for all concerned.”

Secondly, family courts, for the most part, are not ‘problem-solving’ courts, in the sense that they do not deal with the underlying problems that led to the case coming before the court, such as economic, social or housing issues.

Thirdly, “cases involving families, parents and children are spread across the jurisdictions so that families from time to time find themselves enmeshed in the various justice systems in England and Wales.” Thus, for example, a case may involve both the family court and the criminal courts, which do not always ‘speak to one another’, and thus sometimes there can be no “joint or even joined-up decision-making.”

Lastly (and Sir James described this as the “most pressing problem of all”), the family court cannot “intervene on the merits in an area of concern entrusted by Parliament to another public authority” so that, for example, the court cannot direct how resources available to a public body, such as a local authority, are used. A court can only seek to persuade that body to use resources in a certain way. The problem, said Sir James, is exacerbated by the lack of resources, for example in a case where the making of a shared residence order was thwarted by the local authority refusing to provide the father with appropriate accommodation for him and the children.

What is the answer to these problems? I will return to the quote at the beginning of this post, which I will now set out more fully:

“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be. More narrowly, dealing holistically with the family court’s traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victims.”

“Family justice”, concluded Sir James, “is surely about something much wider than mere lawyers’ law.” I think we can all agree on that.

You can read the full speech here.

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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21 comments

Mr T - June 5, 2018 at 1:00pm

Halleluiah – I bet it doesn’t happen.

rum - June 5, 2018 at 1:03pm

The main big big problem is that Litigants in person have no voice . Non compliance is ignored. There is no punishment for non disclosure and a deficient E1. Penal notices are not really given. Perjury might as well be laughed at, and finally legal services orders are just not given out even with evidence of huge diverted funds. The reform needs to be , abide by the law but give no assistance to the cheats charted. One man gets away with it, he tells his friends . It is just a list of rules that are broken and the judges all scared to enforce or give any credit even after evidence is given to provide for fraud and perjury continuously. Toughen up and then the injured parties can get justice . I read so much , it is all worthless as they are frightened of their own shadows . One stop. cheats charter without consequences. Who suffers ? law abiding citizens and their children

Mr T - June 5, 2018 at 1:11pm

I’ve said it before and I’ll say it again.

The family courts need to be completely removed and replaced by a small team consisting ideally of:

A clinical psychologist (specialising in PA)
A child psychologist (specialising in children)

A Men’s Aid and a Women’s Aid representative
A district judge.

The goal of this team should be shared parenting. They need to be told by the judge that if they do not keep their end of the bargain and co-parent then there will be consequences of some kind TBD financial or community work.

No solicitors, barristers, social workers or biased CAFCASS staff to keep profit out of the equation.

John - June 5, 2018 at 1:16pm

It remains that family law doesn’t work for children or the NRP, serving and providing profound advantage for the RP. The system is rotten to the core.

Andrew - June 7, 2018 at 9:53am

Mr T: shared parenting sounds good but is not always on. Parents may have such radically different approaches that the child would be hopelessly confused. Then there is the issue of distance – you cannot tie parents to live near each other for years to come.

“Holistic” sounds good as long as it does not mean “shaft the father out of his assets and give the children such contact with him as the mother feels comfortable with”.

Mr T - June 7, 2018 at 5:12pm

They are all edge cases.

Shared care does not mean equal time it means equal rights. To work this needs to be enforced simply to stop one parent from alienating or controlling the other parents time with the children.

A key part of this would be the abolition of the CMS and put the responsibility of parental finance back into the parents for when the children are in their care. Just unlinking CMS and care would be a massive step in the right direction.

JamesB - June 11, 2018 at 6:00pm

Yesterday, I revisited the wealthy suburb where I used to live with my now ex wife. I was there visiting from my less wealthy area as had been invited to a friend’s child having 1st holy communion party.

Afterwards after having been fed and watered and having a good time, we had a brief walk around the area. I was surprised to see that the two family solicitors there had both shut down. So, the question is, “Am I upset by the decline of the local family law specialists?”. Or rather the question is, given their pushing of dodgy divorces and dodgy feminist mantra of the last few decades resulting in declining marriages and divorces, am I upset by the local family lawyers decline? The answer is as you have probably guessed by now, no I am not.

I just hope we don’t end up with dodgy Sharia law before the farce which currently passes for E and Wales family law is scrapped and replaced with something else. Something like the Scottish system. Plus the tescos law they don’t like they would do well to embrace to connect with people again in the new world including inexpensive prenups and scrapping the CSA/CMEC/CMS/CMOptions. It takes every ounce of my Christian forgiveness to feel any sympathy for them.

joseph Alla - June 14, 2018 at 1:04pm

How approrppriate; waited until his is reaching retirement age; just to give the impression that is doing something about a system that is so rotten and flawed to the point of playing russian roulette with the future and mental well being of children.

Joseph ALLA - June 14, 2018 at 1:20pm

Thank you Mr T, but would they listen to you? well No; because it will keep the bread and butter out of their mouths; childhood in this country has been nationalised since 1960s and they are not about to change that any time soon. Best interests of the child is no more than a nazi euphemism utilised to justify a practise far removed from people day to day lives and completly out of steps with people experiences as parents.

Mr T - June 14, 2018 at 5:48pm

I agree completely Joeseph, however once you accept defeat you are in fact defeated and are part of the problem.

“Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules. And they have no respect for the status quo. You can quote them, disagree with them, glorify or vilify them. About the only thing you can’t do is ignore them. Because they change things. They push the human race forward. And while some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do.”

― Rob Siltanen

JamesB - June 17, 2018 at 10:53am

Joseph, you say, ‘childhood in this country has been nationalised since 1960s’. Well, so what? Are you saying we should leave family’s alone to abuse their children?

I have seen a fair bit of parenting in my years, my mother and father struggled, I don’t think I was that awkward, to the point social services got involved, I still have issues with my parents now. One is an orphan and the other is a bit of a control freak. I love them both though.

I think a degree of state intervention in the family is a good thing. Indeed, with increased state intervention we should be able to help children reach their potential more and have better lives and that is a good thing. You get good single mums and good single dads and good and bad families of all shapes. That said I do agree state trying to help single parents exacerbates the problem. I am hoping Brexit and obvious counter revolution against establishment and feminism may help cause a bit of an overdue rethink on that.

The problem comes with making a best guess in a sea of confusion based on self proclaimed experts who hate men. Its a real shame we don’t seem to have moved on since Kramer vs Kramer and the bias against men in that film which is portrayed accurately. Men and women can make good parents, it is a shame that the professionals and judges cant see that without a lot of money and luck and even then its a long shot.

When my Dad was going through a divorce in the 80s he was told, don’t take a woman to family court, you will lose. Unfortunately we have not moved on since them. Hence why people are voting with their feet not getting married, doing Sharia law, etc. Avoid the place like the plague if possible. Pre nups make sense.

For example, Cafcass head of regional office going to court to talk nonsense backing woman with no good reason having brown corduroys which he cut off himself at 4 5ths length being revered as expert and me being stitched up on contact and maintenance and capital, sick joke. The way they treat fathers in contested hearings is an absolute disgrace. E.g. Bob Geldof and drug addict mum. I know its difficult and best court left out but we should do better than dodgy cliches pretending to be expert opinion.

JamesB - June 17, 2018 at 11:03am

What would I do differently? Have the Scottish system inc. pre nups for ancillary relief. For contact, I think the Judges are ok, its Cafcass who need to be better trained that a father is for life not just for maintenance and conception. Currently they pay little more than lip service to fathers and have no time for fathers.

Cafcass people need to be completely retrained and replaced with new people rather than the current dodgy parole officers and feminist types who treat men like scum, or replaced with social workers.

JamesB - June 17, 2018 at 11:23am

My advice to men involved in this subject is try and avoid court and cafcass as they are institutionally biased against men. For contact and finances.

If you really have to go then take a sense of humour and a thick skin and try not to spend too much on lawyers.Try to avoid the farce which is a man hating system which regards men as nothing but golden geese, walking wallets. The golden geese was what Judge referred to me as – sick that. I.e. only use he could see in me was to keep me to pay maintenance. Complete farce these places.

So, we get to MGTOW (sadly). Then we get to British men marrying foreign women and British women marrying foreign men. Something has to give. I worry for my children. I like to think they can get on better with the members of the opposite sex. May help alleviate the housing crises also.

Bringing in common law spouses isn’t the answer.

If we are thinking outside the box, and I like that sort of thing, how about …

mandatory state sponsored blind dating once a year from 18 for everyone with a UK passport who isn’t married. Like a lottery, or the draft, based on National Insurance number, and if you prefer men or women that year, then you get a state sponsored date.

Like in Singapore and some of these countries (Japan, Germany etc) where GDP per head is high but happiness and birthrate is low.

Issue (which Indians don’t seem to have with arranged marriages) seems to be gender politics and bringing up boys and girls to not get on (or talk) with each other. Relationship classes at school, as long as syllabus is fair and not all about protecting women (or men) from abuse. Should be about Love :-).

JamesB - June 17, 2018 at 11:26am

To clarify on last comment, yes, I think investing in good relationship classes at school is a good thing.

Andrew - June 18, 2018 at 12:55pm

Why do you say happpiness is low in Germany?

JamesB - June 18, 2018 at 2:02pm

As with Singapore, they have low measure of happinness caused by increased pursuit of wealth and low birthrate. Especially since merger with E GErmany the women have been persuing the American dream. Also evidenced by the two main parties only having SDP and CDP having 50% of the vote . Also by importation of over a million Syrians and unrepresentative government and issues with not liking paying Greek debt, etc. Lots of issues with Germany. And they got beat by Mexico last night!

JamesB - June 18, 2018 at 2:05pm

Any country with a natural birthrate of people born there as low as Germany’s has to be unhappy and unviable by definition.

David Cameron’s model of bringing in people to feed economic growth and remaining the same country is not viable. Like Trigger with his broom he had for 20 years, except many different heads and handles. Like if the main religion becomes Islam in the UK, are we still the UK as I know it? I say no.

joseph Alla - June 20, 2018 at 9:48am

Yeah right, call for reform… keep making call for something that is not fit for purpose. in the meantime, children lives continue to be screwed, never mind the lives of those who had already been screwed 15 0r 20+ years ago. Moral hazard still doing all they can to justify their funding.

Joseph A. - June 20, 2018 at 10:27am

JamesB – I was not going to dignify your response but now I think you deserve a response because your reaction sounds shallow. I am not saying that, you are… you are saying we should leave family’s alone to abuse their children. You are the one implying one such thing. I want you to take a good look at what the family court system is doing to our children; is there any follow up after all the so-called arrangements have been made and orders issued? Children are human beings one should not move them around like furniture let one parent use them against another parent without the court having nothing or little to say; there is abuse taking place and that should be stamped out. How often one parent makes up allegations they know they don’t have back up in order to get what they want because they know they will have an easy ride? I know for a fact that many women use the term domestic abuse just like a shopaholic would of a visa card and the sad thing is that many judges would condone one such behaviour because they are not bothered how the child will end up if the parent with custody messes up with child upbringing. Guess what society will pick up the pieces and they will build more prisons to fix. I would like to think that the family court is there to help fix things when things go wrong but unfortunately in many a case they don’t they make things worse and later come with the same cliché that it is not their role to change society; well dude none one is asking them to change society unless the change themselves; if they can’t fix things for which they are set up to do then they should not get involved at all. There is a difference between applying the law and making sure there is justice and fairness. At least Pontius Pilate has the courage to wash his hands off the Jesus fate when he handed him back to the mob when he knew exactly what they would do of him; I can say the same about those judges who issue orders and later don’t even bother about whatever happens later as a result of their decision, except that the court needs more funding. Personally I am yet to be convinced that money should play a part in doing the right thing, but unfortunately it does and that’s how the legal aid industrialised complex supersede the “best interests of the child” they vaunt themselves to uphold.

JamesB - June 20, 2018 at 12:30pm

Thank you for your post Joseph. I ask what you would replace the current system with? You suggest scrapping family court and CSA. I am with you on the CSA. Not with family court. I do argue for reform.

At least Mr T suggests a replacement, which I do happen to disagree with. You do not.

I will answer your question, Judges are there to implement the law , whether they are nice people or not is irrelevant. I agree they don’t give a damn. They are paid well to make them un-bribe-able. I debise Cafcass for their ineptitude and I despise the court and the CSA/CMS/CMEC/CMOptions and the law for their inflexibility. Specifically on prenups and dodgy divorce ‘facts’ and timescales. I have suggested alternatives.

Its like Oscar Wilde’s trial, he tried the honesty approach, it didn’t work. Sometimes the system and the law sucks. It is better to live with rules though other than in the jungle / game of thrones / trial by combat nonsense etc.

Joseph A. - June 20, 2018 at 10:39am

Judges don’t seem to have any issues with Cafcass; it seems they (Cafcass) make their job far easier. Don’t get me wrong not all judges are the same. Just like in any other profession you have the mediocre, the good and the great ones. Some care passionately about children and understand the position parents find themselves in; others don’t just care, they are interested only in processing people just like in an assembly plant. What would do if you were on £107,000 or £107, 000 a year JamesB? I suppose just make things zip along and make sure your mortgage is paid and your retirement plan is perfect working order. Won’t you?

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