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!