Families have changed so much in Britain, our family law and courts need to catch up. Sir James Munby delivers a thought-provoking call for a one-stop family court in England & Wales.
“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be.”
This, in essence, was the message contained in an important speech given by the President of the Family Division Sir James Munby at the University of Liverpool on the 30 May. The message is not new, but when it is stated so clearly by the President of the Family Division then we must all surely take note, including the policymakers in Westminster. Sir James, of course, is due to retire next month, but his passion for reform clearly goes well beyond that point, as it will obviously be some time yet before we see the sort of family courts he envisages.
The subject of Sir James’s speech was, in fact, the question: What is family law? It is a simple question, but not necessarily one with a simple answer.
Before considering that question Sir James addressed the logically prior one: What is the family? The answer to that, he explained, is rather more complex in contemporary Britain than it was previously. Whereas not so long ago what people understood as the ‘family’ was simply a mother and father, who were married to one another, and their natural children. There were few variants upon this that would still be considered a ‘family’.
Now, as Sir James explained, the family takes an almost infinite variety of forms, including unmarried couples, same-sex couples, single-parent families, step-parent families, families with children conceived by artificial donor insemination, and families with children born as a result of surrogacy arrangements. This new reality, said Sir James, is something that we should both welcome and applaud.
Moving on to the question of what family law is, Sir James summarised it as being primarily concerned with three things: acquiring and terminating a certain status, for example, being married, or having parental responsibility for a child; dealing with the consequences of relationship breakdown; and the regulation of the family finances, typically following the termination of relationships, whether in life or on death.
Sir James then moved on to the real meat of his speech, in which he outlined four problems with the family courts as they are currently structured:
Firstly, the current complex and varied procedures (for example, under different statutes, depending upon the exact nature of the issue being dealt with) for addressing the three central concerns of family law (status, relationship breakdown and the family’s finances) “prevent the family court ever addressing the family’s problems holistically and in a simple ‘one-stop’ process.” This fragmentation of the family court’s processes, he said, “can lead only to delay, added cost and, worst of all, additional stress for all concerned.”
Secondly, family courts, for the most part, are not ‘problem-solving’ courts, in the sense that they do not deal with the underlying problems that led to the case coming before the court, such as economic, social or housing issues.
Thirdly, “cases involving families, parents and children are spread across the jurisdictions so that families from time to time find themselves enmeshed in the various justice systems in England and Wales.” Thus, for example, a case may involve both the family court and the criminal courts, which do not always ‘speak to one another’, and thus sometimes there can be no “joint or even joined-up decision-making.”
Lastly (and Sir James described this as the “most pressing problem of all”), the family court cannot “intervene on the merits in an area of concern entrusted by Parliament to another public authority” so that, for example, the court cannot direct how resources available to a public body, such as a local authority, are used. A court can only seek to persuade that body to use resources in a certain way. The problem, said Sir James, is exacerbated by the lack of resources, for example in a case where the making of a shared residence order was thwarted by the local authority refusing to provide the father with appropriate accommodation for him and the children.
What is the answer to these problems? I will return to the quote at the beginning of this post, which I will now set out more fully:
“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be. More narrowly, dealing holistically with the family court’s traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victims.”
“Family justice”, concluded Sir James, “is surely about something much wider than mere lawyers’ law.” I think we can all agree on that.
You can read the full speech here.