From my latest Solicitors Journal column “Family Business”, 13/2/2014
The search for answers continues in the family court system, says Marilyn Stowe
The family court system is being overhauled, particularly in the area of public law. It is being streamlined and modernised. There is no choice but to buckle down, grit teeth and deliver the cheapest system possible. Meanwhile, what does the future look like for those of us associated with private practice family law? I am not sure anyone can predict with absolute accuracy. Even our judges are delivering mixed messages.
It seems to me that the President of the Family Division, Sir James Munby, has long since accepted the demise of legal aid and the reduced role the lawyers will play. Writing in one family law periodical, he remarks of 2014: “the focus must now be on the necessary changes and reforms in relation to private law….A system based on the assumption that parties are represented must be radically re-designed to reflect the reality that parties will not be represented.” He adds, with a foreboding flourish: “there can be no room for complacency about our current practices.”
However, a fellow high court judge has a different take. Sir Paul Coleridge lauds the work of family lawyers. “There is no area in which lawyers and the courts are engaged more importantly,” he says, going on to describe family law as “the single most important area of legal practice bar none. It affects every single citizen in their private lives… Family law deals with the regulation of, substantially, the whole field of a person’s private lives. And if that is not the most important aspect of a person’s life I do not know what is.”
Sir Paul Coleridge calls for urgent legislative law reform together with a review of practice and procedure. He favours a “much more modern process by FDR, mediation, collaboration and arbitration or a combination.” He points approvingly to a Canadian process called Med/Arb, in which mediation takes place with arbitration as a “fall back”. The vital role played by lawyers is central to his vision of a much-improved future for family law.
Meanwhile Mavis Maclean, the joint director of the Oxford Centre for Family Law and Policy, has been reporting on her ongoing research into the changes to the professional landscape. Tellingly, she makes no bones about the present confusion surrounding the current purpose and intent of the law and justice system, stating, “I am not quite sure where the law and the justice system now stand.” The search for answers continues.
I imagine that few of us are opposed to modernisation. We accept that within the current system, there is plenty of room for improvement. But with so many grey areas and no clear direction, the present effect is one of voices chattering away in the darkness. How long must we wait before somebody turns the light on? More worrying still: when everything is illuminated, what will we find there?
Those of us who follow Sir James Munby’s increasingly ominous pronouncements may wish to dwell in the darkness a while longer. After all, if recent developments such as the demolition of legal aid and the rise of self-representation have shown us anything, it is that family lawyers are increasingly undervalued by those with the power to bring about change.
This article was first published by Solicitors Journal, and is reproduced by kind permission