President updates on family justice changes

Last Friday the President of the Family Division Sir Andrew McFarlane gave the ‘keynote address’ at the 2019 conference of Resolution, the association of family lawyers. (I tire of having to give that explanation of who Resolution are, particularly as they used to be more helpfully called the ‘Solicitors Family Law Association’, but the word ‘Resolution’ does not of course explain to the uninitiated who the organisation are. ‘Resolution’ was chosen as their name as it denotes that its members are devoted to trying to resolve family disputes amicably, although it could just as easily be taken in the entirely opposite sense of ‘resolute’, i.e. obstinately refusing to move from one’s negotiating position. Such are the hazards of nomenclature.)

Anyway, on to the speech.

The theme of the speech was the change presently occurring on all fronts in the family justice system. Changes referred to by the President included those caused by Brexit, changes in response to the increasing caseload in the family courts, changes consequent upon the court reform programme such as regional divorce centres and online divorce, and the introduction of specialist financial remedies courts. I see no point in repeating all that the President said here, and in any event much of what he said is not of course new, so I will mention just a couple of things that caught my eye.

The first thing was something quite small: the use of telephone hearings for (usually urgent) matters, where the other party is not notified. As the President pointed out, other courts have been doing this for some while, and he considered it sensible for them to become the norm in the family courts. This seems like an excellent idea.

The next thing relates to the establishment of a ‘database’ of financial remedy outcomes, which could provide practitioners (and presumably litigants in person) with guidance as to the ‘going rate’ in ‘ordinary’ (i.e. not big money) financial remedy cases, thus making it easier to advise on what the outcome of a case is likely to be The database would be created by a computerised process, whereby at the end of every single case, it will be provided with basic information as to the key financial components and facts, together with the outcome of the proceedings. Researchers could then “produce schedules or tables identifying the preponderant outcome in typical cases across a range of set variables.” Sounds like an interesting idea, although whether it would actually produce anything useful in practice, we will have to see.

The last thing I want to mention comes from what the President said about private law children cases (i.e. children cases not involving a local authority). He began by doubting the often-quoted figure (including by myself) that only one in ten couples have to apply to the court to sort out arrangements for their children, rather than sorting out those arrangements themselves. He believes that the figure is more like 40%. That seems rather high to me, based upon my experience practising as a family lawyer for about a quarter of a century – my memory was that most parents sorted things out themselves without needing a lawyer (remember this was back in the days before legal aid was abolished, and therefore lawyers were available to all), and most of the cases where lawyers were involved were sorted out without court proceedings.

Anyway, the argument of the President was that a large proportion of those cases that now go to court should not have to.

He said:

“…using the Family Court to resolve straightforward, non-abusive, relationship difficulties between parents who separate is unlikely to be an effective course to follow, costs a great deal of money and is not seen, by many of its users, to be working effectively.”

There has to be a better way, he said. This includes improving co-parenting between separated parents, although that is not a matter for the courts. What the courts can do, however, is to have “a much keener focus on a ‘solutions-based process’ engaging a ‘dispute resolution alliance’ of local services with court reserved only for those cases which absolutely have a justiciable problem.” It all sounds very good, but as all family lawyers will have witnessed, keeping parents who are determined to have their ‘day in court’ away from the court building can be easier said than done.

In his conclusion the President speaks of this cycle of change settling down “in a year or so”, after which “we will live with the resulting processes for some time to come thereafter.” I am not so sure. As I said here just recently, we have had virtually continual change in the family justice system for some years. Change these days is seemingly constant. In fact, it is a feature of the modern world that those in positions of power see it as their main function to institute change to resolve the problems around them. The thinking seems to be that change must always be a good thing. Of course that is not so: sometimes change can make no significant difference, sometimes it can make things worse, and sometimes it can introduce entirely new problems. There can actually be merit in leaving things the same, so that people are familiar with how they work. Whatever, I do not see things “settling down” any time soon, and possibly not any time at all. Change is with us, get used to it.

You can read the full speech here.