Mixed messages (from Solicitors Journal)

Family Law|February 20th 2014

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

Author: Stowe Family Law

Comments(10)

  1. JimSmith says:

    If people are not always to be represented then the only possible way for the public to have even some faith in the justice system is to end secret hearings and conduct ALL business in open court.

    Some will say the privacy of the child (and others) must be protected, but doing so destroys public trust in justice and will lead to an assumption that the purpose of the secrecy is to protect the guilty. It will lead inevitably to ever more social workers having doors slammed in their face, and almost no-one being willing to talk to social workers about anything at all. And rightly so, for that is the price of secrecy without effective legal aid.

  2. Anon says:

    I agree with JimSmith, well said.

  3. Paul says:

    The situation in care cases where social services become involved is that parents do become entitled to legal aid representation. The important thing for parents to bear in mind is to find a lawyer who will truly argue your case because we now know how corruptly and complicitly magistrates act as a legal enforcement arm of the social.

  4. Stitchedup says:

    “we now know how corruptly and complicitly magistrates act as a legal enforcement arm of the social.”

    And just last week we have seen a call from a right wing think tank for a return to Police Courts for criminal cases….. nightmarish!!!

    Magistrates should only be used to pass judgement/sentence for guilty pleas. They are simply too biased towards authorities to give a fair trial for not-guilty pleas.

  5. Paul says:

    If you want proper justice, always plead “not guilty” and opt for Crown Court trial. Never, ever elect to have a case heard by magistrates.

  6. Stitchedup says:

    Paul, I’m hearing this all the time from those in the profession and those who have been dragged through the courts for some minor, borderline reason.

    Magistrates courts are simply not up to the job of giving a fair trial. It’s not just the magistrates, district judges are as bad in many instances; the presumption if innocence simply does not apply any more, particular if you fall into one of the political hot button categories in a crack down area.

  7. Stitchedup says:

    An I don’t see it getting any better when we have a man vs woman issue; we’ve just seen the back of one of the most left wing feminist DPP’s in history. It will take some time to recover from that and the new DPP is a woman, though I can’t claim to have any knowledge of her politics.

  8. JamesB says:

    Magistrates Courts have a conviction rate in the high nineties percentages. Oftentimes courts work as administrative courts where they should not, taking the easy option, bad law that way.

  9. JamesB says:

    While on the subject, access to the law and lawyers (inc. prenups) is too expensive.

  10. Ellen says:

    regarding keeping the child identity private social services and the family courts are able to publish children on websites for fostering and even adoption. All departments including barristers and solicitors and social services work along side each other. Parents don’t get fair trails in family courts. at least in a criminal court you are innocent till proven guilty but in family courts its guilty till proven innocent. Care cases should be open as then at least the parents if they are innocent get a fair chance to prove it. Maybe the family court should use juries like in criminal courts to make the decision. And definitely the family courts have to stop using a possibility of any type of abuse. you should only remove children with evidence not possibilities.

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