A tweet I read on Sunday re-opened for me a subject that I have touched upon here before: the family justice system has many critics, but is it actually possible to come up with something better?
We hear it all the time: from the anti-family justice brigade, who allege that the system is corrupt and should therefore be done away with, to the less hysterical critics, who assert that a court of law is not a suitable place to resolve family matters, which should be dealt with in a more appropriate forum. For me, however, there has always been a fundamental problem with a non-court-based system.
To explain, I need to go back to basics.
There are only two types of family disputes: those that the parties are able to resolve by agreement (whether directly, via lawyers, through mediation, etc.), and those that the parties are not able to resolve by agreement. Obviously, it is only the latter that are a problem.
How are such disputes to be resolved? Well, I can think of only one way: having a third party adjudicate the dispute and impose a binding decision upon the parties to the dispute. Now, of course the third party need not be a judge/court – it could be anyone with the knowledge and expertise required to come to a sensible decision. However, if the ‘rules’ governing such disputes are to be set out by the law (more of which in a moment), then the obvious adjudicator is a judge, and the obvious forum is a court.
But the adjudication is only part of it. The other part relates to that word ‘binding’. What if one of the parties does not accept the decision of the adjudicator, as is likely to be the case in many disputes? If nothing is done about that, then the dispute has simply not been resolved, and we are back to square one.
The answer, of course, is that the decision of the adjudicator must be enforceable.
OK, let’s stop there for a moment. As I mentioned above, many of the reasonable critics of the family justice system say that a court of law is not the appropriate place for a family matter to be dealt with, especially if it involves children. They have a point: for example, very many family cases are dealt with in the same building as criminal cases, which certainly doesn’t seem right. Leaving that aside, courts are intimidating places for many, even if they are certainly less intimidating than they were when I began practising back in the early 1980s. And judges can be intimidating too, although family judges are rather more approachable than judges dealing with other matters. The critics suggest that family disputes be dealt with away from the courts, by suitably trained lay people.
But how can the decisions of those people be enforced? What is needed is a mechanism whereby sanctions can be imposed upon the party who is refusing to comply with the decision.
And this is the fundamental problem with any non-court-based system. Only the courts possess the power to impose such sanctions. And this is how it should be: sanctions for non-compliance with decisions may be very serious, ultimately possibly affecting the liberty of that party – a court of law is the only appropriate place for such serious matters to be dealt with.
I suppose there could be some sort of two-stage system where the original decision is made by an out of court forum, and the matter only goes to the court for enforcement purposes. However, for the very same reason of enforceability, the rules governing family disputes need to be enshrined in the law. And that being the case, obviously the more legal training and experience an adjudicator has, the better. And the people with the best training and experience of all are judges. In other words, a system with non-judicial adjudicators would, as a generalisation, be a second-rate system (remember here I am only referring to those cases where the parties cannot reach agreement – I make no criticism whatsoever of those, such as mediators, who help people resolve disputes by agreement).
For the sake of completeness I should mention arbitration which is, of course, an out of court system of resolving disputes. However, it is only partially ‘out of court’: it does of course use the same rules of law to make its decisions, and those decisions must be approved by the court to be enforceable (most arbitrators are highly-trained lawyers, and some are former judges).
To conclude, I don’t think that it is possible to come up with a different but better family justice system. However, that is not to say that we should not continue to do everything we can to improve the system we have. To quote (I assume) Lord Justice Jackson in that tweet I referred to at the beginning of this post: “The system is not perfect but can anyone think of a better one?”
On the matter of Family court. Justice Jackson summed everything up so well during a chat. “The system is not perfect but can anyone think of a better one?” How would we fundamentally better it to suit all? The reality is something I reflect on often.
— SLange (@SJLange1) February 11, 2018