The real reason why the Family Justice Review has failed

Family Law|November 3rd 2011

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.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(15)

  1. ObiterJ says:

    I am finding this report a most interesting read but note that it remains wedded to the child welfare being paramount principle and argues that the Children Act 1989 is sound. Like you, I wish that the panel had included a wider range of legal professionals since I feel that a number of ideas might have been more seriously questioned than appears to be the case.

    There are many examples – e.g.

    a) the 6 month time limit on care proceedings – ideally I would agree but the reality is that many cases involve great difficulty in placing the child(ren) and often little is really known about those who come forward as prospective carers – I suspect that the 6 months limit will become more honoured in the breach

    b) the consideration of care plans. I feel very uneasy that the judiciary’s role in scrutiny of these plans will be diluted with much left to busy local authority social workers and very overworked local authority lawyers.

    The report calls for money to be spent – e.g. Family Justice Council; Judicial Continuity (may need more judges to ensure this); provision of buildings and the old chestnut of IT. Then there is a lot of emphasis on training, dissemination of information, meetings of judiciary and others etc. It all takes time and costs money.

    Speeding up processes is OK but will the removal of consideration of some matters by the Adoption Panels be a good thing? The report seems to think that the court will have done the job. Could this be truly said of, say, the average Family Proceedings Court?

    Just a few instant reactions for now. Better reasoning / critique may follow !! So far it looks like the curate’s egg to me ………… good in parts !

  2. Marilyn Stowe says:

    I’m wondering how much the Family Justice Review has itself cost the tax payer and what has it achieved?
    Couldn’t anyone working in the system have suggested the amalgamation of the family courts under one umbrella and better judicial case management and training in about one minute flat? End of story?
    I’m sorry to sound grumpy, I tried to find something positive, but it seems overall such a waste of a great opportunity when there are so many deeply unhappy people caught up in the family courts, bogged down getting nowhere.
    My suggestion of considering needs of all parties could on the other hand be quickly and cheaply implemented, by amending the Children Act. Then judges could use their discretion and take into account the needs of all parties as they do in finances, subject of course to the over riding principle that the welfare of the child is paramount in children cases.

  3. The real reason why the Family Justice Review has failed « Untouched Smile | Care Your Child says:

    […] The real reason why the Family Justice Review has failed is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  4. Yvie says:

    Because the report is recommending that fathers have no legal rights to their children on separation, the report seems to give the green light to any mother who wishes to reduce or eliminate the children’s contact with their father.

    I think it could be particularly relevant when a mother has introduced a new partner to the children and wishes to move on with her life ‘ in the best interests of their children’ without the need for involving the biological father.

  5. Marilyn Stowe says:

    Thanks very much for this and of course the scenario you highlight happens frequently, as do many others where parents (mothers and fathers) are airbrushed out of their children’s lives because the current legal system does unfortunately make it too difficult for them to continue. I don’t want to sound like I’m on a soap box but as I see it, streamlining the system without addressing the root cause is not the entire answer!

  6. Yvie says:

    I heard you speak on radio recently and I was heartened to hear you say that you felt that all parties concerned in divorce, mothers, fathers, grandparents, should be given the respect they are entitled to and that their views should be heard and listened to.

    I have the view that a default 50/50 shared care arrangement by law is the way forward. Both parents would then legally know where they stood, and it would then be up to them to discuss together which arrangements would suit both them and their children depending upon family circumstances. Neither parent should be able to deny the other parent adequate contact with their children. There should be no need for Court action unless there were unable to agree to a suitable parenting plan.

    Long may you continue to stand on your soap box. Hopefully more will join you!

  7. Graham says:

    You write very eloquently Vie and are very pursuasive and I agree with you – where I didn”t before I read what you wrote, which is very uncommon, someone changing my pov that is.

  8. Judy Park says:

    An excellent article. Long may you stand on your soap box. More of us may need to join you there.

  9. Marilyn Stowe says:

    Thank you Judy. Great start to a Sunday!

  10. Louise C. says:

    Marylin,

    I believe the existing legislation is sound but that it has never fully been implemented. If you believe it is in need of an overhaul, which sections would you amend or supplement and how?

  11. Marilyn Stowe says:

    Id look at Section One of the Children Act 1989.

  12. Lukey says:

    I don’t think it will ever be resolved fully because you usually start off with a major problem – both parents want to be resident but obviously are not able to stand living in the same house as each other 🙂

    In my view one stable residency is paramount for the welfare of the children and that should be the parent who has looked after them the most – usually but not always it is the mother. The other parent should not be obstructed from seeing the children and the resident parent should NOT be allowed to move far away without the consent of the non-resident parent – if they don’t like that I’m afraid it is tough and the cost of the privilege of being the resident parent.
    As for grandparents, in an ideal world it would be no problem for them to have access but it is complicated enough for the court and in my view beyond their remit.

  13. Jane Jackson says:

    Hi Marilyn,
    I only just read your article, and must say how refreshing to hear that you also think this is a missed opportunity,I couldn’t agree more.
    This government keeps saying how they are ‘family friendly’ here they could have proved it and put it right for the millions of children in the UK who are missing out on their fundamental right to the love and care of both parents and their grandparents, (if safe for them to do so)
    We have a generation of children who are angry,confused and lost because the adults in their lives appear to have let them down.
    At one of the consultation meetings I attended the reps from the panel all agreed that there is a problem and it is not right but do not have the power of their convictions, to stand up in public and say this must change.

  14. Name Witheld says:

    After 2.5 years of proceedings, several “final hearings” and a seven figure legal bill(!), I do not have words for how extraordinarly badly English Family Law is producing justice that is fair and most importantly good for the children. In England children are instantly put in the middle of the conflict instead of being protected. As a Scandinavian who grew up in a gender neutral society where it is assumed that men and women have equal rights, capabilities and responsibilities, I find myself in a costly court system that make strange, unfair and outdated assumptions about how peoples were and what they should be. While you are married you are free to live your life the way you want. When you go through a contested divorce then you will live the life the court orders you too. The court is NOT interested in real facts unless there is a trial and by that time so much useless paperwork has been produced and people’s lives have been so disrupted that nothing remains the same.

    The reason the Governemnt is always supporting families is that there is an overwhelming body of evidence that families are good for society and for childrens wellfare. As soon as you get divorced all that is being thrown out of the window and if it is a contested divorce then the courts are forcing children to loose the family they are used to. Suddenly the family is not important! It is simply astonishing.

    Just like with other injustices like rasism, homophobia or slavery the government will have to make a public appology in 25 years time to the millions of children these courts have made fatherless and for the emotional and psychological suffering these misguided ignorant policies has caused. Shame on Norgrove.

  15. Anon says:

    If only you were the judge in these cases. After 4.5 years of having my grandchildren over night and every weekend, I suddenly can’t see them because I said I wasn’t interested in who my son was seeing and after 2 years of being separated, the drama is over. That means, apparantly that I don’t care about my grandchildren. The um beat up the new girlfriend and was arrested and those poor little mites must be so confused. I fear for their wellbeing and it’s heartbreaking not knowing if they are ok. I’m now saving up, as attempts to make contact are hopeless. If only they had changed the law, it may make parents put their children first. Keep up the good work

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