The long-awaited Family Justice Review, published today, presented a golden opportunity to review and recommend changes to existing law. Instead the Review panel, chaired by former senior civil servant David Norgrove and populated by bureaucrats and children experts, has failed families in crisis. Hopes that the Family Justice Review would propose groundbreaking reforms, expanding family law’s current, tunnel-vision focus upon children to the rights and needs of all parties – such as fathers and grandparents – have been dashed. Twenty-year-old law, creaking with age and under the weight of all its pitfalls, remains in need of an overhaul.
The 1989 Children Act came into force in 1991 and I remember its arrival very well, not least because it signalled an entirely child-centred focus in family law disputes. It was worth a try. Custody, the cause of so much animosity, was abolished in favour of “residence” and “contact” with children. The overriding principle, that the welfare of the child is paramount, became enshrined in law. Ever since then it has been slavishly applied in pursuit of a fair outcome in family law disputes involving children.
My practice is centred on private law disputes, and most are between the mother who has day-to-day care of the child, and the father who seeks to play a more important role in the lives of his children post-separation. In these modern times, the father has usually played a major role before splitting from his partner. Often he finds that once out in the cold, he has to fight – and fight hard in some cases – to keep up a meaningful relationship with his children. Many fathers give up en route. It becomes too expensive and too time-consuming. They lose faith in the various judges they meet along the way who, as the law requires, must remain impartial in the children’s overall interests.
David Norgrove’s solution? Fathers’ groups were hoping that equal rights of access would be given to both parents. In trying to help, Mr Norgrove has instead proposed the abolition of the terms “residence” and “contact”. But what will this achieve? Surely it is the principle that needs reviewing, rather than the name of the application?
It is true to say that the majority of disputes about children are resolved out of court. There may be flourishes or minor skirmishes, but most parents are ultimately pragmatic. They recognise the need for all family members to move on with their lives and adapt to a new lifestyle. In theory, the principle that the welfare of the child is paramount is applied by both parents to all decisions about future care. In reality, I suspect that many cases are resolved because all parties’ needs have been catered for.
In family law, the financial settlement on divorce recognises the needs and requirements of both parties and their children. All parties’ rights and interests are recognised. When it comes to disputes involving children, however, the focus narrows and the parents’ rights go virtually unrecognised. Child-centred legislation has its merits. However it excludes the respect and integrity that are, surely, due to all parties in what is described as “family” breakdown. Grandparents, for example, must obtain the court’s leave before they can make an application for contact. Why should they have to jump through two sets of hoops just to see their grandchildren? Aren’t judges more than capable of making a judgement without the prior requirement for leave, which causes such humiliation and distress? Why such a lack of understanding for the needs of those other than a child?
The law is clearly not working as well as it could or should. Overlooked and disparaged, parents, grandparents and cohabitants are crying out for suitable legislation. What a shame it is that the Family Justice Review has dismissed this opportunity to even up the playing field and restore some dignity for all parties involved in family breakdown. Instead we have more of the same: an entirely child-centred review of the family justice system, which changes little.
Perhaps this isn’t surprising, when you look at the composition of the Family Justice Review panel. Lord Justice McFarlane, a former child-centred practitioner and academic, is its sole legal representative. Almost all the Panel’s members come from child-centred or administrative backgrounds. With such a narrow train of focus of expertise and experience, how could they fully understand the needs of all parties in family breakdown? Should we be surprised that they have produced a Family Justice Review that lacks vision and flair and is, essentially, more of the same?
Society has undergone profound changes in the 20 years since the Children’s Act took effect. The numbers of unmarried families, working mothers, stay-at-home fathers and grandparents who play an active role in childcare and unmarried families have all soared. I don’t take issue with the principle that the child’s welfare is paramount – that is as it should be – but my everyday experiences as a family lawyer convince me that the current law is deficient and that reform is required.
I don’t believe that reform is unrealistic, or far-fetched. I also think it is telling that earlier today, after I appeared on BBC Radio Five Live and suggested the same, listeners called in to agree. (You can listen to the programme here.)
So where do we go from here? I would like to see the Children Act reviewed not by a child-centred, bureaucrat-heavy review body, but by experts who work in the field day in and day out, who know the pitfalls of today’s legal practice and procedure. One sensible way forward would be to continue to place the child at the forefront of all decisions, while enshrining in such law the rights of all family members to a family life. In the meantime, the current problems are bound to continue.