The future of family law

Family Law|October 15th 2014

I have been reading the speech given by the President of the Family Division Sir James Munby at the 2014 Wales Legal Conference on the 10th of October. It was entitled 21st Century Family Law. I had hoped to learn something profound about the future of our family justice system. Were my hopes fulfilled, or was I disappointed?

Now, I realise that foretelling the future is a notoriously difficult and risky business, exposing the teller to ridicule if his or her predictions prove wide of the mark. Sir James acknowledged the hazards of the enterprise at the beginning of his speech, and I accept that we cannot expect miracles of him. However, he is in a rather better position than most and should therefore be able to give a reasonable indication of what is to come.

Unfortunately, Sir James spent much of his speech dodging the issue, by looking at how family law arrived at where it is today, rather than how it will be. That is not to say, however, that his look at the past was not interesting. He took us through from the Victorian era and the views of the court in those days, as articulated by the first ‘Judge Ordinary’ of the Court for Divorce and Matrimonial Causes Sir Cresswell Cresswell (I always loved that name): “…it should be known that a woman, if found guilty of adultery, will forfeit, as far as this Court is concerned, all right to the custody of, or access to her children.”

Thankfully, things moved on from those days and Sir James went on to explain how the modern world – our world – came into being in the rather more liberated times of the 1960s. However, as he proceeded to say, much still remained to be done to achieve full equality between the sexes and only recently, for example, was this recognised as the core principle in dividing assets between spouses on divorce.

Sir James then looked at the challenges now facing the family justice system. He listed two: the ever-changing nature of our world, including changes in social attitudes, and the speed of change. The tools that we must bring to bear in order to deal with these things have also changed: gone is the idea of judges promoting virtue and morality, replaced by a search for the views of reasonable men and women.

Finally, some ten pages into the speech, Sir James turned to his predictions for the future, although he limited them to just a few years hence. He mentioned new procedures for sorting out finances on divorce (the ‘money arrangements programme, or ‘MAP’), as well as the need to re-design private law children procedures to reflect the fact that parties will no longer be represented in a world where there is so little legal aid. Along similar lines he talked of the need to encourage non-court dispute resolution and to adapt court processes for the benefit of litigants in person, for example by making judicial processes more inquisitorial.

As for anything new (at least to me), Sir James talked of the challenges of dealing with litigants who ‘labour under particular difficulties’, such as those lacking capacity and victims of domestic violence. He did not explain how those challenges will be met, but merely said that he “hopes to be in a position to identify the way forward well before this time next year”.

Otherwise, he spoke of the need for more transparency and of the need to reform substantive law, as opposed to procedure only. He said he would be surprised if the law on financial remedies after divorce did not undergo ‘more or less’ radical reform in the coming years, but did not really express a view as to the form that that reform might take. He also spoke of the desperate need for the introduction of property rights for cohabitants (something with which I’m sure most family lawyers would agree) and mentioned the introduction of no-fault divorce and, once again, the idea of making divorce a purely administrative process.

And that was about it. Little that was new, at least for those who follow developments in family law. I suppose I shouldn’t be disappointed – after all, the family justice system is already in the middle of a period of the greatest change in a generation, and that has obviously already involved much thought about the future. Finding something new to say in those circumstances is no easy task.

I will end this post with a little prediction of my own for the future of family law. Unfortunately, my crystal ball does not paint a very happy picture. In it, I see the system grinding to a halt, clogged up with hapless litigants in person. I see those litigants being ripped off by charlatan, unqualified and unregulated ‘legal representatives’. I also see many people choosing not to get themselves mired in the court system and instead taking the law into their own hands. Lastly, I see professionals leaving the system in droves, fed up with its failings.

I will also not be disappointed if my predictions prove to be wrong.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(3)

  1. George Statingfield says:

    The Legal Services Consumer Panel (LSCP) has been very positive about what you describe as – ‘charlatan, unqualified and unregulated ‘legal representatives’’, you mention.

    Your criticism would hold some weight if the public was not so overwhelmingly negative towards family lawyers due to their experiences over many years. There are some excellent lawyers but many who are dreadful, regulation and qualifications have done little or nothing to change this. Plenty of these advisers you attack do have necessary qualifications, anyway fwiw.

    The family courts now are working as good as or better than they have ever done for both parents and children. Still a long hard slog to get it anywhere near where it should be as a service.

    The getting rid of the ‘adversarial’ champion lawyer approach towards an inquisitorial system slowly but surely improves the system and outcomes for children and parents.

    http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf

  2. Clare says:

    And some of them are unemployed family lawyers who have been unable to secure another position, therefore leaving no choice other than to work as a fee charging McKenzie.

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