It seems like a question that doesn’t need asking. After all, it has such an obvious answer: the family courts are there to resolve family disputes, whether they be between family members or the family and the state.
Well, it seems that that simple proposition no longer tells the whole story. As the President of the Family Division Sir James Munby made clear in his recent speech to the Family Law Bar Association, the family court will in future be expected to be a problem-solving court, dealing with the underlying problems which led to the case coming before the court. He gave two examples in his speech of the types of problems the court will deal with: drug and alcohol problems, as already addressed by the Family Drug and Alcohol Courts (‘FDACs’) and the underlying problems of the women who find themselves losing successive children in repeat care proceedings, a project that is in development. He also said that other projects are being considered, although he did not give details.
But is it the job of the family courts to deal with all of society’s ills? Where will it end? Will they have to teach warring mothers and fathers to become better parents? Will judges in divorce courts become marriage guidance counsellors? There are underlying problems in virtually every family dispute, but judges are lawyers – will a few days training turn a lawyer into an expert problem-solver?
I fear that this drive to extend the duties of the family court may be picked up by the government, encouraged by the recent news that FDACs save money. Anything that saves money is, of course, music to the ears of government ministers, and those ears must have pricked up when they heard of the report by the Centre for Justice Innovation which concluded that FDACs save the state money by keeping families together, reducing the number of families returning to court and reducing the incidence of substance abuse.
I couldn’t possibly comment upon the report’s findings but it is extremely enthusiastic for FDACs, as one would expect from a charity dedicated to building a justice system “which seeks to address the problems of those people who come into contact with it.” Unfortunately that enthusiasm, along with the enthusiasm of our President that I commented upon here in my post about his speech, may lead the government to support the idea of extending the remit of the family court into problem-solving.
So why am I against problem-solving? Of course, I am not. What I am against, as I hinted at above, is lawyers being expected to deal with matters for which they are unqualified, even with the assistance of experts. It is not the job of the court to solve society’s problems. Courts are there to administer the law, and judges are (highly) trained to carry out that task. They are not trained in any of the disciplines necessary to resolve the underlying problems which led litigants to the doorsteps of the courts.
But even if judges were qualified to deal with such problems, there is still the issue of where the resources necessary to deal with such matters will be found. Effective problem-solving is not something that can be achieved on the cheap. Resources, including not just money but also court time, are already overstretched, often to the limit. The government wouldn’t be prepared to lose some of the savings achieved from courts doing problem-solving by putting more money into the system.
I am not in any way diminishing the work done by FDACs. However, it just seems to me that it is inappropriate for courts to be given a task for which they were not designed. Courts are not the best place to deal with society’s problems, and burdening them with that task could bring an already overloaded system to its knees.