Somewhere down on Petty France – the London home of the Ministry of Justice (MoJ) – work continues apace on a project called the Out of Court pathway. There is a clue in that title. The team of civil servants engaged in the task have identified many of the problems so familiar to readers of this blog. But some remain seemingly undiscovered.
The gendered nature of private law disputes is a problem for the family justice system. Whilst we recognise that the courts make decisions that are child-focussed and underpinned by the principle that ‘the best interests of the child are paramount’ it is inescapable that gender plays a significant role in proceedings. It is also true that same sex parents can of course face problems but the majority characteristic of ‘private law’ is undeniably a dispute between a man and a woman over the arrangements for their children.
The moment we acknowledge gender we fire the first salvo in the war over bias that has been fought bitterly here and elsewhere many times. The inimitable John Bolch has written on the subject tirelessly, repeating again and again his own mantra –‘there is no bias in the Family Court’ – and decrying the conspiracy theorists.
Meanwhile, in a more structured way researchers, primarily funded by the MoJ and the Nuffield Foundation, with Professor Liz Trinder at their head, have declared conclusively that there is no bias in the family courts. In her seminal statement on the issues in The Guardian newspaper back in 2012 Professor Trinder confidently declared that:
“The research evidence is clear…. the claim of systematic bias against fathers is a myth.”
But myths are powerful things and are not so easily dismissed. A recent helpline caller told me that he’d just come from a legal advice clinic where the solicitor volunteer had told him that he had no chance of achieving his aim as everyone knew that the Court was biased against men.
But Professor Trinder finds no bias and insists that enforcement works very well. In fact she claims that contact is being granted in too many cases where serious allegations of abuse have been raised. The counter argument – that women are disadvantaged in the Courts – can also plausibly be developed, citing evidence that fathers are overwhelmingly awarded some form of contact even where mothers have identified domestic abuse.
Powerful lobbying from Women’s Aid takes a similar tack, underpinned by their attention-grabbing 19 Child Homicides report. There they call on the family justice system to stop awarding contact to fathers altogether because, they insist, they are often abusers who kill their children. This is a very different take on the issue of gender bias of course.
It is against this backdrop that the Ministry of Justice Out of Court pathway has started work. Some of its objectives include:
- Effective, fair resolution of child arrangement disputes which provide better outcomes for children and families going through separation.
That’s nothing there that anyone reasonable could argue with of course. In my experience all parties agree that outcomes for children need to be of paramount consideration – they simply disagree on what that looks like in the real world.
- (To) encourage a cultural shift to one of self-service (where appropriate) through provision of information and support.
Now I can sense the lawyers amongst you starting to worry. ‘Self-service’ feels a bit too much like ‘litigants in person’ – and we all know where that leads us: to chaos, with the ‘lunatics’ taking over the asylum!
But how do we know whether any of this is really achievable? The MoJ have helpfully set out some ‘outcome measures’ so that we’ll know whether their plan is working. These include:
- Reduced court applications
- Financial savings for the tax payer due to fewer private family court proceedings
Aha – yet another attempt to stop people going to court and thereby cut the bill to the tax payer. No doubt someone did a similar exercise over legal aid and look where that took us!
But my theme is the gendered nature of private law – how does that relate to the MoJ initiative? Let’s look at the first outcome measure. The clear intention there is to reduce the number of applications. It makes sense therefore to look at who is applying to the court, because by stopping them you will achieve your goal.
Perhaps surprisingly the MoJ don’t seem to have published data about the profile of applicants. We thought that might be a little bit of an oversight so we made some enquiries. The headline fact is that, from a detailed analysis of applications under section 8 of the Children Act 1989, from 2011 to first quarter of 2016, we see a consistent theme – men outnumber women as applicants by a little over 2:1. This fact is corroborated by Nuffield-funded research from 2015 which shows that 70 per cent of applicants are men (although it is worth noting that 96 per cent of applications for contact under the pre-2014 arrangements also were initiated by men).
Researchers Dr Maebh Harding of the University of Warwick and Dr Annika Newnham of the University of Reading state that:
‘The most common type of court application was for an order to allow contact, making up 41% of our sample. 96% of all contact applications were made by fathers. The majority of these applications were made in order to initiate or restart contact.’
So, it seems pretty clear that understanding the gendered nature of private law proceedings is an essential component of achieving the outcomes that the MoJ seem to want. It is all the more bizarre then that in a 62-page Powerpoint delivered to MoJ ‘stakeholders’ at the end of August there was absolutely no recognition of the gendered nature of the problem. Online dispute resolution, fewer cases going to Court, greater emphasis on self-help – it’s all familiar yet worrying stuff for legal professionals. But fear not – at a recent MoJ presentation someone put their hand up and asked ‘But what if there’s domestic abuse?’ The answer the officials gave may reassure. It was:
“Straight to court!”
Read Liz Trinder’s article in The Guardian here.