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Mr Justice MacDonald reflects upon the past and future of family law

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March 28, 2024

A time for reflection

The past and future of family law: It seems to be a time for judicial and other reflection upon the history of our family justice system. Only in December, I wrote here about a speech by the President of the Family Division Sir Andrew McFarlane, in which he looked back at how family justice has dealt with the fraught issue of child abuse over the years and going back a little further I looked at a lecture by Professor Jo Delahunty QC, in which she considered the past and possible future of the Children Act, upon the occasion of its thirtieth anniversary.

Now High Court judge Mr Justice MacDonald has got in on the act. In a speech given to the Four Jurisdictions Family Law Conference in Malaga, Spain, on the 1st of February he reflected on the past twenty-five years of family law and peered “through a glass darkly in an attempt to perceive what challenges the next twenty-five years may hold, and how we may begin to think about addressing them.” The Four Jurisdictions refer to Scotland, England, Northern Ireland and the Republic of Ireland, and the relevance of twenty-five years is that this was the twenty-fifth anniversary of the conference.

The speech concentrates on the law concerning children.

The past twenty-five years

Mr Justice MacDonald began this part of the speech thus:

“Looking back over the past twenty-five years of family law what is immediately apparent, at least from my perspective in England and Wales, is the relative stability of the cardinal legal principles that we bring to bear on the myriad of problems encountered by children.”

He is, of course, referring in particular to the Children Act, and how well it has stood the test of time. He explains, however, that the way in which these stable principles are applied has undergone fundamental change, as a result particularly of societal changes, but also of scientific and other changes that have occurred in that quarter-century.

The rest of this part of the speech is of interest, but I will not dwell upon it here, as I think that what Mr Justice MacDonald has to say about the future and its challenges is of even greater interest. I will, therefore, move on.

The next twenty-five years

Mr Justice MacDonald begins by admitting that “any attempt to squint through the looking glass will yield results that are, necessarily, highly speculative.” However, he says, some things can perhaps be anticipated.

Amongst those, he mentions in particular advances in medical and genetic research. He says:

“Well publicised research raises the possibility of ever increasing treatability of childhood cancers and of children whose genetic heritage is born of more than two parents in order to address genetic conditions, but also of children whose genetic makeup is manipulated at conception to produce characteristics considered socially desirable by a commissioning parent. The ethical questions that will fall to be considered where a dispute arises on these questions between parents in private law contexts will be highly complex.”

Moving on, he says:

“It is to be anticipated that the march of technology and social media, in particular, will continue to challenge historic concepts of privacy.” He ponders upon whether, for example, this might call into question the sustainability of traditional closed adoptions.

His look into the future ends in dramatic fashion:

“Finally, if one peers even deeper into the rabbit hole, we may imagine future generations of family lawyers who will be tasked with considering not only the mediation of human relationships and disputes but the very nature of humanity itself, as biology and technology achieve singularity.”

He goes on:

“On their face, disputes between parents as to whether to allow their child the addition of a biotechnical interface to supplement the child’s memory capacity, or to remove the child not only from the jurisdiction but also from the planet appear new and exotic to us. But the essential question remains the same. Namely, which of the diverging choices advanced by the parents as a legitimate exercise of their parental responsibility is in the child’s best interests, having regard to the child’s wishes and feelings, characteristics, physical, emotional and educational needs, any risk of harm, the capabilities of the parents and the powers of the court. The best interests test and … the welfare checklist constitute supremely malleable tools, sufficiently flexible to last us long into the future.”

He makes clear, however, that this is not an argument for remaining still. On the contrary:

“In seeking to ensure we continue [to] maintain the efficacy of our family laws, we must locate children properly in the context of their own era and to develop strategies that recognise the realities of children’s experiences in their own time.”

He concludes by pointing out that we must ensure that what we have learnt over the past quarter century is passed down effectively from generation to generation:

“Within this context, education must play a central role in sustaining the advances we have made over that time. We cannot forget those hard won lessons if we are successfully to meet the challenge of the future, the challenge of the next twenty five years in family law.”

You can read the full speech on the past and future of family law here.

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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, with his content now supporting our divorce lawyers and child custody lawyers

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