Piecemeal reform continues unabated

Family Law|January 28th 2015

It seems that hardly a month passes without some new report recommending reform of some part of the family justice system. These reports emanate from a number of sources, including the Law Commission, the Family Justice Council and various ‘working groups’ set up by the President of the Family Division. Keeping track of it all is becoming a full-time job – thankfully for me I am no longer practising, as if I was I’m not sure I would have any time left to get any actual work done.

The latest example of the genre is the final report of the Financial Remedies Working Group, which was dated the 15 of December last, but for some reason was not published until the 26 of January. “The group”, as it likes to call itself, was established by the President last June. He had two tasks in mind for it: “to explore ways of improving the accessibility of the system for litigants in person, and to identify ways of further improving good practice in financial remedy cases.” Its ultimate objective is to produce something analogous to the Child Arrangements Programme (acronym: ‘CAP’) for money cases: the ingeniously-titled ‘Money Arrangements Programme’ (acronym: ‘MAP’).

The CAP sets out ‘best practice’ in relation to how the courts should deal with disputes between parents over the arrangements for their children, and presumably the MAP will do likewise for financial remedy cases. This will add to the ever-increasing list of statutes, rules, practice directions and guidance that anyone with the temerity to make an application to the family court must follow – how the burgeoning army of unrepresented litigants in person are supposed to tread their way through the minefield, I don’t know.

I don’t propose here to summarise the recommendations of “the group” – I’m sure others far more learned than me will do that far better than I ever could. Instead, I just wanted to make a couple of general comments.

The first comment is really just an extension of the point I’ve already made above: I’m sure that the members of the group were genuinely driven by the aims set out by the President, but it seems to me that all of this tinkering with the system actually risks making the system more complex and impenetrable for users, in particular litigants in person.

Some of the changes proposed, such as accelerated procedures and de-linking financial remedy applications from the divorce suit are surely going to make things more complicated rather than less, by adding further options. And I seriously doubt that even the recommendations that do apparently make things simpler will result in a reduction of the volume of rules etc.

But it’s not just about the actual recommendations. Some of the new terminology (I’ll resist using the term ‘jargon’) that is creeping in is surely only going to confuse litigants, just as much of the archaic Latin-based terminology used to do in days gone by. I’m thinking of expressions such as ‘gatekeeping procedures’, which have little or no use in everyday life. And what on Earth is a ‘wardrobe’, in the context of standard court orders? I realise that these terms are not the invention of the group, but could they not have taken the opportunity to use somewhat clearer terminology?

My second comment is a point beyond the control of any working group, and even beyond the control of the President himself. All we seem to get these days is piecemeal reform: tinkering with something here, changing something there. Surely, what is really needed is for our forty-plus year old financial remedies system to be overhauled completely? Let’s sweep away all of the old laws and procedures, and design a whole new system fit for the twenty-first century!

Alas, such a complete reform is something only within the power of government, and as reform of the law on financial remedies following divorce is not a vote-winner, no government in recent times has shown any real interest in it. For now, all that can be done is to tinker – proper reform may be yet another forty years away.

Wardrobe image by Bettaliving.co.uk via Flickr

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