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Solving Family Problems: Evolution or Revolution?

The out-going President of the Family Division, Sir James Munby, recently delivered a compelling lecture in Liverpool, calling for the creation of an enhanced and re-vamped family court with much wider powers to engage with the many difficulties faced by families in society.

With laudable ambition, the President referred to the simplicity of his proposals whilst recognising that the road to achieving them would be long and hard.

“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 victim. Family justice is surely about something much wider than mere lawyers’ law.”

In his sweeping assessment of the limitations of the current family justice system, the President identified four problems that needed solving.

Firstly, there is the problem that the complex procedures (both statutory and as set out in the Family Procedure Rules 2010) 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 can lead only to delay, added cost and, worst of all, additional stress for all concerned.
Secondly, family courts should be, but for the most part are not, ‘problem-solving’ courts. He pointed to the success of the Family Drug and Alcohol Courts, noting the greater incidence of reunification in cases managed through this problem-solving paradigm.

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. In this regard, the President highlighted the different jurisdictions (and avenues of appeal) to decide family cases, criminal cases involving children, mental health issues and issues such as asylum and immigration. Rather then bringing these jurisdictions under one overarching enhanced court, the President considered judicial ‘cross-ticketing’ as a means of bringing expertise and experience to these many and varied jurisdictions.

Fourthly, the President identified a very common frustration in public law proceedings in particular – the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade. The President argued eloquently for primary legislation, which would give the court the power to direct the provision of services in certain circumstances.

Evolution or revolution? However one characterises the reforms proposed by the President, his assessment of the current state of the family justice system is only one step away from its condemnation as a system not fit for the holistic objective purpose of solving family problems.

Richard Powell