Family justice system faces a permanent state of change

Family Law | 2 Mar 2016 0

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“All change is not growth, as all movement is not forward.”

– Ellen Glasgow

Or, to put it another way, not all change is for the better. Of course, I could equally have chosen a quotation with a rather more positive sentiment about change, such as Winston Churchill’s “To improve is to change; to be perfect is to change often.” Some might say that the difference between the two is the difference between the pessimist and the optimist. Contrary to what I am about to say, I have always felt myself to be an optimist when it comes to change, generally considering that most changes are for the better.

Our Family Division President Sir James Munby is also clearly an optimist when it comes to change. Since he took office three years ago he has enthusiastically overseen some of the biggest changes we have seen to the family justice system in a generation (or more), including the establishment of the single Family Court; a revised public law outline regulating the conduct of public law children proceedings; and the implementation of the child arrangements programme, regulating the conduct of private law children proceedings. Those efforts have clearly not in any way dimmed his enthusiasm for change, as his speech last Friday at the annual dinner of the Family Law Bar Association amply demonstrates.

In the course of the speech the President mentioned many proposed or forthcoming changes to the family justice system both big and small, including the following:

  • Guidance on how better to anonymise judgments so as to minimise the risk of ‘jigsaw’ identification.
  • Further involvement of children in the process of family law, not just in the cases that affect them but also more widely in the realms of policy and reform, including new rules and practice directions.
  • Tightening-up of the Bundles Practice Direction by the imposition of pages limits for various types of documents.
  • The introduction of ‘settlement conferences’, similar to Financial Dispute Resolution appointments in money cases, in both private and public law children cases.
  • Piloting in selected courts of schemes for judicial and Cafcass involvement in the pre-proceedings phase of some types of care case.
  • Making the family court a problem-solving court, focusing on addressing the underlying problems that lay behind cases, such as already occurs with Family Drug and Alcohol Courts.
  • The big one: introducing the digital court, whereby some proceedings will be conducted almost entirely online (the President indicated that digital on-line divorce is planned for at least initial implementation early in 2017).
  • An entirely new set of rules (I can hear the groans amongst lawyers already), replacing the last set of rules that have only been in place since 2010.
  • Last, but not least, “a radical revision of both court forms and court orders”.

Phew. Once you catch your breath you will realise that pretty well EVERYTHING within the family justice system will have been changed before the term of our zealous President comes to a (merciful) close.

What I never realised was just how awful the old system was. Clearly, it failed all those who went through it or who worked within it, including all of the clients I ever acted for. The strange thing is that that is not my recollection: yes, the system was not perfect, but it did a pretty good job in the vast majority of cases.

Now, I know that some of the above changes are responses to recent events, in particular the economic climate requiring cost-savings and the abolition of legal aid causing a huge surge of litigants in person. However, many of the changes do not seem to be driven by such things, but rather by the attitude that any change must make things better. Sadly, though, that is not necessarily the case.

Take, for example, what has happened in the education system (of which I have some personal knowledge) over the last thirty years or so. During that time education has been the subject of almost continual change, with successive governments constantly tinkering with it. Now, despite what such innovations as league tables will tell you, and what government ministers will regularly proclaim, all of those changes have not resulted in any perceptible improvement in standards. In fact, standards were at least as good when I left school in the 1970s. What the changes have done, however, is to destroy the morale of the teaching profession, by putting more and more pressure on teachers, particularly in terms of administration and oversight by outsiders. The inevitable result of this is the shortage of teachers that has been mentioned in the news recently.

Now, I’m not saying that the President’s reform programme will necessarily have the same effect upon the legal profession, or at least those who practise family law (although I suspect that some have already become weary of constant change). I am also not saying that all of the proposed changes are bad or unnecessary. What I am saying is that we need to get away from this notion that change must always be a good thing, and its corollary that what we had before must have been inferior, or even unfit for purpose. We don’t want to throw out the proverbial baby with the bathwater: much of what we have already is worth keeping, and not all of what is being proposed will actually be an improvement.

The full text of the President’s speech can be read here.

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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