The reforms that took place last month were said to be the largest family justice reforms for a generation. I’m not entirely sure of that, as most of the reforms were purely procedural ones, rather than reform of substantive law – the actual law governing family matters is virtually the same as it was prior to the reforms. This got me thinking: just how has substantive family law changed in recent times, and does that provide any lessons for future reform? I’ll consider these things in this two-part post.
I will restrict my little survey of recent reforms to the period since the coming into effect in 1971 of the Divorce Reform Act 1969, something I mentioned here on Monday. As I said then, that Act ushered in our present divorce system, and it was probably this that was at the back of the minds of those who referred to last month’s reforms as the largest in a generation. This starting-point also fits reasonably well with my own acquaintance with our family justice system, which began when I studied law at university in the late 1970s.
Beginning (or perhaps I should say continuing) this survey with the law on divorce, there has been hardly any change to the law since 1971. OK, the original bar on petitioning for divorce within three years of marriage was reduced to one year by the Matrimonial and Family Proceedings Act 1984 (I do remember this – it was around the time I first started actually practising family law), but that is about it. Of course, parliament did attempt a fundamental reform of divorce in 1996, with the Family Law Act of that year. The Act was supposed to bring in no-fault divorce, but that turned out to be such a hot political potato at the time that the divorce reform provisions of the Act were never brought into force. This was probably for the best, as the Act was so poorly thought-out and badly drafted that implementing it would have been a complete nightmare. Incidentally, Part 2 of the Act, which included the divorce reform provisions, is finally to be put out of its misery by section 18 of the recent Children and Families Act 2014 which will repeal those provisions, although as far as I can see no commencement date has yet been fixed for section 18.
By contrast with the law on divorce, children law has received considerable attention since 1971, in particular with the passing of the Children Act 1989. The Act consolidated and reformed children law. It swept away such age-old concepts as ‘custody’ and ‘access’, replacing them with ‘residence’ and ‘contact’, and did much more besides. In particular, it introduced the idea of ‘parental responsibility’, replacing parental rights and duties. It also brought in the ‘no order principle’, whereby the court should not make orders relating to children unless it considers that doing so would be better for the child than making no order at all. Accordingly, it would no longer be the case that orders relating to children (previously custody and access orders) would be made virtually automatically in all divorces where there were dependent children. I recall that the new concepts enshrined in the Children Act caused no little consternation amongst family lawyers at the time, including myself, who were used to the old ideas. Of course, this is one area where last month’s reforms have changed real law, with residence and contact orders now replaced by ‘child arrangements orders’.
I shall continue this survey of recent reform of family law in my next post here.