Common sense drowns in a sea of guidance

Family Law|September 18th 2017

I am old school. I admit it. I first studied law in 1976. I first practised law in 1980, and I first practised family law in 1983. I am a dinosaur awaiting extinction.

Back in those dim and distant days I don’t recall that there was much in the way of guidance for family lawyers, beyond the statutes, rules of court and precedents. There was the odd practice direction, but there was no other guidance, no protocols, no child arrangements (or any other) programme.

But there was common sense, and that seemed to fill all the gaps that we didn’t then know needed to be filled with a tsunami of guidance. In fact, common sense did far more than all of the guidance that followed: it covered every possible situation – not just those that were conceivable to the guidance-makers. Ironically, but inevitably, replacing common sense with a sea of guidance, as has happened since those dim and distant days, left gaps that all the guidance in the world could never fill.

These thoughts have been prompted by a reading of the new Practice Direction 12J (PD12J), which deals with the court’s approach to child contact in those cases where there are allegations of domestic violence. However, they could just as well have been prompted by reading any of the other practice directions, guidance, protocols or other missives that seem to emanate from on high every five minutes these days. As I’ve said before, I honestly think that if I was still practising today I would find myself quite paralysed, unwilling to take any action for fear of contravening the latest guidance.

The counterpoint of that of course would be following the guidance blindly, rather than using common sense – a trap that surely many lawyers, particularly those of limited experience, are likely to fall into. After all, if we discourage lawyers from utilising their common sense, then why would they risk not following the guidance?

Guidance inevitably becomes black and white, thus we get advice along the lines of: “If the court finds x, it must do y.” We see this in paragraphs 32 -34 of PD 12J, which tell the court what to do in all cases where domestic abuse has occurred. Many situations, however, are a shade of grey. What if, for example, the court does not see the need to obtain information about the facilities available locally to assist any party or the child, as required by paragraph 32?

And then so much of the guidance can be absurdly obvious. PD12J is riddled with examples of this, such as paragraph 4 which includes the profound advice that “domestic abuse is harmful to children”, or paragraph 37, which tells the court that where domestic abuse has been found it should consider (amongst other things) “the effect of the domestic abuse on the child and on the arrangements for where the child is living”. Does a judge really need to be told such things? If they do, then surely they are not fit to be a member of the judiciary.

I’m sorry, but I just wonder whether all of this guidance has just gone too far. I know that the whole concept of issuing guidance in case some do not have any common sense is not unique to law. Nowadays we see it in other professions, such as education (to my knowledge) and no doubt many, if not all, others. It is to do with our modern risk-free society. We know that a small minority do not possess common sense to guide them, so we must burden everyone with an ocean of guidance, to ensure that errors are never made.

But of course that aspiration is a nonsense. There is no such thing as an error-free system. By all means, we can try to minimise errors, but the exercise of common sense did at least as good a job as any amount of guidance could do. I don’t recall there being any more bad decisions back when I was a fledgling lawyer than there are today.

Instead of burdening our lawyers with a huge (and impossible to remember) body of guidance, we should have confidence in their ability to find the right way to resolve problems themselves. Just because a small minority may not be capable of doing this, we should not imprison the rest in a straitjacket of rigid guidance.

I’m not saying that the guidance is wrong. Of course it isn’t. It’s just that it creates a further layer of knowledge to learn, it restricts free thought, and it encourages lazy thought. We didn’t need it when I began practising, and we didn’t need it for generations before that fateful day when I first set my eyes on a law book.

I know that everything I say here is futile. The horse has already bolted. Or, to extend the aqueous analogy to breaking-point, I am like Cnut, trying to hold back the tide. Unfortunately the tide has already drowned us. It is too late to turn it back.

Common sense R.I.P.

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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  1. Nick O'Connor says:

    Great post, thank you

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