A workload challenge and the need for change: the Presidents speak

Family Law|Industry News|November 30th 2018

It is a rare thing that we are treated to the wisdom of not one but two Presidents of the Family Division. OK, Sir James Munby may no longer technically occupy that post, but I’m sure for many family lawyers he will always be (and with much affection) ‘the President’.

Sadly, both speeches paint a rather unhappy picture of the current state of the family justice system, although they both suggest how things might be improved.

On the 23rd of November the present President Sir Andrew McFarlane gave a Key Note Address entitled “Crisis; What Crisis?” to the Association of Lawyers for Children Conference 2018, and on the following day Sir James gave a talk at the Annual General Meeting/Conference of the National Association of Child Contact Centres (‘NACCC’).

I will begin with Sir Andrew’s speech. The headline from the speech came from that title, and actually contradicted something that Sir James said when he was President, albeit with good reason, as Sir Andrew explained. Back in 2016 Sir James had referred to the unprecedented numbers of children applications to the family court as a ‘crisis’. However, said Sir Andrew:

“Whilst the use of the word ‘crisis’ was fully justified in drawing attention to the developing situation in 2016, at a time when we did not understand what was occurring or why, that word is no longer apt as there is now a fairly clear and developing understanding of these matters and a set of strategies that are being developed to address the pressures in the system. In terms of the title of your conference I would therefore suggest ‘“Crisis” NOT “Crisis”’. In future I intend to use the phrase ‘workload challenge’ to refer to the acute difficulties that we are all currently facing.”

One may think that this is just semantics, but Sir Andrew goes on to explain his case in detail. I will not go through it all, as most of it refers to public law child care cases. However, as to private law cases he did have something interesting to say. Far too many parents, he said, were coming to the court when they had no need to do so and when the court was not the best place to resolve their disputes. He went on:

“In terms of the challenge to the overall system arising from increased workload, I see private law as the area where it may be possible to achieve a very significant reduction in numbers. This will involve substantial change, not only to our working practices, but also, I believe to the public perception and expectation of what a court can, and more importantly what it cannot, do to resolve parental conflict.”

He did not elaborate further, only saying that this was a “work in progress”. He appears to be referring to the idea that he has raised previously, that in order to manage their expectations parents involved in disputes over arrangements for their children be given an indication by the court at the outset of the case what the court would regard a reasonable amount or pattern of contact to be, although his words suggest something more. We will have to wait and see exactly what he has in mind.

Moving on to Sir James’s speech, I would first like to repeat what he says about child contact centres in general and NACCC in particular. They both play a vital role:

“Child Contact Centres enable contact which otherwise might not occur to take place and they play a central part in maintaining, and if necessary restoring and rebuilding, the child’s relationship with parents, grandparents and other relatives.”

I remember this from my time practising. In fact, my NACCC booklet listing all the centres belonging to the association was one of the most-thumbed items on my bookshelf. What we would do without contact centres, and the volunteers who run them, I don’t know.

The rest of the speech (and I recommend you read it) essentially sets out in some detail what Sir James considers is wrong with the family justice system, and his ideas as to how those wrongs may be put right. For example, echoing Sir Andrew he suggested that far more cases be dealt with out of court, and for those cases that do go to court he said that there should be proper assistance for unrepresented litigants, and ‘radical reform’ of the process at the hearing itself, with courts adopting an inquisitorial approach, and acting as problem-solvers, dealing with the underlying issues that led to the case coming to court in the first place.

Sir James ends with the following reality check:

“Is any of this achievable? Whether one is an optimist or a pessimist, all we can do is keep on, arguing for what is right and doing whatever we can to bring it about.”

Retirement or not, I’m sure we can rely upon Sir James to do just that.

You can find Sir Andrew’s speech on the Courts and Tribunals Judiciary website here, and Sir James’s speech is on the Transparency Project blog, here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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