Family Justice: The Work of Family Judges in Uncertain Times 9781474200080, 9781849465014

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ACKNOWLEDGEMENTS There are many people whose expertise and generosity have contributed towards this book. First, and most obviously, are the judges and court staff without whom we could not have begun to understand the complex working of the justice system. We thank them most warmly, but must refrain from naming individuals in order to abide by our commitment to preserving their anonymity. We have benefitted from many conversations with practitioners, academic colleagues and those involved in the policy world, not just in preparing for this book but over many years. We would particularly like to thank Ann Barlow, Benoit Bastard, Julia Brophy, Stephen Cobb, Gillian Douglas, Ira Ellman, Belinda Fehlberg, Jane Fortin, Mark Henaghan, Joan Hunt, Rosemary Hunter, Rae Kaspiew, Sanford Katz, Judith Masson, Cheryl Morris, Arran Poyser, Helen Rhoades, Liz Trinder and Fran Wasoff. Mavis Maclean John Eekelaar

1 The Family Justice System I. Introduction This book is about the delivery of family justice. It does not deal, except in a limited way, with the substantive law nor even with the social issues that mark the terrain covered by family law. Of course a full examination of ‘justice’ in relation to families would require such coverage, and those issues are the subject of much public debate and academic literature. But ‘family justice’ can be taken in a more specific way as referring to the system or systems through which the law is applied. The Review Panel chaired by David Norgrove established by the UK government in 2010 to examine the family justice system in England and Wales entitled its report the Family Justice Review. This is the way we employ the expression in this book. We too concentrate specifically on England and Wales, although we draw on information from other jurisdictions. Within these parameters, the core of the book has a more precise focus. This is on the work of the family judiciary, in particular, the judges working in the lower courts, where the bulk of family litigation occurs. In this way, we complete the work begun in 2000 when we published our research on the divorce work of solicitors in this jurisdiction (Eekelaar, Maclean and Beinart 2000), followed in 2009 with a study of the practice of family law barristers (Maclean and Eekelaar 2009). However, the policy context in England and Wales is developing in a manner which impels us to do more than simply present empirical findings. This is dominated by two major events. The first was the major overhaul of the legal aid system by the Coalition government formed in 2010, presented first in a Consultation Paper in that year (Ministry of Justice 2010a), affirmed in 2011 (Ministry of Justice 2011a) and enacted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, to become effective in April 2013. The second was the publication of the report of a Panel, also set up in 2010, under the chairmanship of David Norgrove to review the operation of the family justice system in England and Wales. This published an Interim Report in 2011 (Ministry of Justice 2011b) and a Final Report later that year (Review Panel 2011). The government’s response to the Review Panel’s report was published in 2012 (Ministry of Justice and Department for Education 2012), in which it accepted a central recommendation that the separate levels of court that dealt with family matters should be combined into a single court structure. The legislative framework for implementing this was

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provided in the Crime and Courts Bill 2012.1 Further recommendations of the Review Panel, in particular concerning the conduct of public law cases concerning children, and ‘co-operative’ parenting between separated parents, are expected to be included in legislation to be enacted in 2013.2 It therefore appears that in 2012 family law is on the cusp of what could be a significant repositioning of the role of the law in family matters. There is a danger that, in the mass of practical, detailed issues that arise, insufficient attention may be given to larger issues. For example, the proposals concerning legal aid appeared to question the part that law should play in family disputes at all. This is, we think, only partly a question about the use of resources in difficult economic times. Similarly, serious questions arise about the extent to which the value of fairness should be followed in public law cases. Equally profoundly, the relationship between legal processes and alternative forms of dispute resolution, and the way helplines and information technology may be used to convey information and advice, raise significant issues about the place law should have in confronting family disputes. Finally, possibly most importantly, it seems to be thought that the role of judges should change, although there are worrying signs that the way they presently work in family matters is little understood. When we consider how these events may interact with each other, for example, the desire to accelerate care proceedings3 together with the possible consequences of reductions in legal aid,4 their cumulative effect could be considerable. For these reasons, we have broadened the theme of this book beyond giving an account of empirical evidence about the work of family judges, though it remains central to it. There appear to be more fundamental issues at stake, resulting often in contentious, and sometimes contradictory, policy responses. These raise broad questions of justice which concern the nature and role of the family justice system. It is these matters, rather than the minutiae of the changes, with which we are mainly concerned. We therefore start by considering these issues in general, somewhat abstract, terms, in order to provide a framework for the later discussion of the empirical data. But we return to these conceptual and ideological issues at the conclusion.

II.  Assumptions and Misperceptions In March 2010 the Panel appointed by the government to review the family just­ ice system in England and Wales began its work. Its terms of reference were expressed in this way (Review Panel 2011: Annex A):   cl 17.   Children and Families Bill 2013. 3   See ch 7, section III. 4   See ch 3, section VI. 1 2



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The Secretaries of State for Justice and Education and the Welsh Assembly Government Minister for Health and Social Services have commissioned a review of the family just­ ice system in England and Wales. The following guiding principles have been identified which are intended to provide a framework within which the Review’s work should be undertaken: The interests of the child should be paramount in any decision affecting them (and, linked to this, delays in determining the outcome of court applications should be kept to a minimum). The court’s role should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so. Individuals should have the right information and support to enable them to take responsibility for the consequences of their relationship breakdown. The positive involvement of both parents following separation should be promoted. Mediation and similar support should be used as far as possible to support individuals themselves to reach agreement about arrangements, rather than having an arrangement imposed by the courts. The processes for resolving family disputes and agreeing future arrangements should be easy to understand, simple and efficient and be transparent both to those involved and wider society. Conflict between individuals should be minimised as far as possible. The review should assess how the current system operates against these principles and make recommendations for reform in two core areas: the promotion of informed settlement and agreement; and management of the family justice system. Specifically, this will include examination of the following issues. The extent to which the adversarial nature of the court system is able to promote solutions and good quality family relationships in private law family cases and what alternative arrangements would be more effective in fostering lasting and positive solutions. Examination of the options for introducing more inquisitorial elements into the family justice system for both public and private law cases. Whether there are areas of family work which could be dealt with more simply and effectively via an administrative, rather than court-based process, and the exploration of what that administrative process might look like. How to increase the use of mediation when couples separate as a preferred alternative to court processes. How to promote further contact rights for non-resident parents and grandparents. Examination of the roles fulfilled by all of the different agencies and professionals in the family justice system, including consideration of the extent to which governance arrangements, relationships and accountabilities are clear and promote effective collaboration and operational efficiency. This will include looking at the roles carried out by Cafcass in England and by Cafcass Cymru.

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The ‘guiding principles’ set out for the Panel make a number of assumptions about family justice. In 2000, PSC Lewis examined evidence of the nature of assumptions that policy-makers appeared to make about lawyers, as revealed in a variety of policy documents (Lewis 2000). Lewis pointed out that, while all argument to some extent proceeds on the basis of assumptions, it can be important to test what they are. It may often be the case that they are not supported by research evidence. For example, ‘an assumption that negotiating through lawyers is associated at getting the “best deal” at the other party’s expense is not generally supported by research’ (Lewis 2000: vii). Lewis points out that arguments in policy documents may be better regarded as forms of rhetoric, and that this must have its place in policy formation (Lewis 2000: 3). Nevertheless, assumptions can also reflect certain stereotypical ‘myths’ or ‘themes’, and that ‘care should be taken to see in what circumstances they are or are not true’ (Lewis 2000: 5–6). We will examine and present evidence about some of these themes in the context of family justice throughout this book. At present we will consider what some of them are.

A.  The Child’s Welfare The first guiding principle is that the interests of the child should be paramount in any decision affecting them (and, linked to this, delays in determining the outcome of court applications should be kept to a minimum). (Review Panel 2011: Annex A). This assumption is embodied in statutory form in section 1(1) of the Children Act 1989, which applies the principle to any question with respect to the ‘upbringing of a child’, or ‘the administration of a child’s property or the application of any income arising from it’. The Family Justice Review reiterated that children’s interests should be central to the operation of the family justice system (Review Panel 2011, para 2.24). This would appear to be uncontroversial. We have followed this in the central position we have given to children’s issues in the presentation of our material in this book. The assumption about ‘delays’ is less clear. While at first sight it may seem obvious that ‘delays’ are undesirable, the word ‘delay’ is a loaded one, suggesting untoward behaviour with undesirable consequences. Some processes, however, may in their nature take time to complete properly, so the lapse of time can be appropriate and beneficial.

B.  Protecting the Vulnerable The next assumption is that ‘The court’s role should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so’. (Review Panel 2011: Annex A). While this statement undoubtedly refers to one role that courts play, the conceptualisation misses the perspective that adjudication may also be necessary to



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resolve disputes about people’s legal rights, irrespective of their ‘vulnerability’. The distinction could perhaps be overcome by taking a broad view of ‘vulnerability’, for example, by holding that anyone whose legal rights are at risk, and who can protect them in no other way than through the justice system, is a ‘vulnerable’ person. It might be argued that this is particularly so in family disputes, about which the European Court of Human Rights has observed: ‘marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court’ (Airey v Ireland5; Miles 2011). But that was not the way the succeeding Coalition government saw it. In response to objections to its proposal that legal aid for representation in court for people who are accused of domestic violence or child abuse in private law proceedings should be removed, the government stated: In considering whether alleged perpetrators should receive legal aid in these cases, it is important to remember that we are seeking to protect the most vulnerable in society. Alleged perpetrators do not necessarily fall into this category in the way a victim of abuse would. (Ministry of Justice 2011a: para 45).

So the fact that someone was faced with allegations that could have affected the right to visit his or her child was not seen as in itself making them vulnerable (Eekelaar 2011a).

C.  Promotion of Positive Involvement of Both Parents Following Separation. The statement that ‘The positive involvement of both parents following separation should be promoted’ (Review Panel 2011: Annex A) appears to articulate an uncontroversial approach to the way parents should relate to their children if they separate, but in fact conceals some intricate issues concerning the way law operates. These will be considered in chapter eight6 which deals with contact and residence disputes concerning children.

D.  Adversarial Nature of the Court System The statement that specific attention will be given to The extent to which the adversarial nature of the court system is able to promote solutions and good quality family relationships in private law family cases and what alternative arrangements would be more effective in fostering lasting and positive solutions (Review Panel 2011: Annex A)

  App No 6289/73) (1979–80) 2 EHRR 305, para 24.   See particularly ch 8, section V.

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reflects the commonly accepted view that common law civil procedures can generally be described as ‘adversarial’. ‘Adversariality’ in this context has been defined as a method of adjudication characterised by (i) an impartial tribunal of defined jurisdiction; (ii) formal procedural rules and (iii) ‘assignment to the parties of the responsibility to present their own cases and challenge their opponents’ (Luban 1988: 57). However, this is by no means necessarily true with regard to family proceedings. Indeed, the origins of the family jurisdiction are found in the practice of the ecclesiastical courts, which was predominantly ‘inquisitorial’, in the sense that they did not rely solely on what the parties told them but sought out information about their behaviour and passed moral judgement on it. Until 1971, a government official, the King’s (or Queen’s) Proctor existed to investigate whether a litigant’s claims were true, and courts could dismiss divorce petitions even though one party offered no defence.7 While this no longer happens in divorce cases, the overriding requirement that in decisions regarding the upbringing of children the child’s welfare is paramount8 means that family courts do not necessarily see themselves as doing no more than deciding which adult party has presented the best case. Penny Darbyshire, who spent 57 days observing 21 family judges between 2003 and 2007 in a general study of the judiciary in England and Wales, noted that family law procedures appeared to be different from other areas of the law: In an otherwise adversarial legal system, the (family) judge’s job is to dissipate the natural adversarialism that has arisen between estranged parties. To this end, the judge cannot be passive. Some describe their role as inquisitorial. It is frequently interventionist (Darbyshire 2011: 263).

It is not only the interests of the children that undermine the adversarial element in family proceedings. It seems that the nature of the issues themselves, which usually concern sensitive personal relationships, may lead the judges to adopt a more proactive approach in family cases than in most others in a quest to find solutions that are optimal for the parties. The way they do that is explored in chapters five and six. The central message of this book is that, while adversarial procedures in the sense described here can occur in family courts, they form but a part, and by no means the largest part, of the way these courts operate.

E.  Mediation Should Be Used as Far as Possible The final significant assumption in the terms of reference is found in the sentence: ‘Mediation and similar support should be used as far as possible to support individuals themselves to reach agreement about arrangements, rather than having an arrangement imposed by the courts’ (Review Panel 2011: Annex A). This repeats a perception long expressed by government that sees the only ways of resolving family disputes as being either through solutions ‘imposed’ by courts   See further ch 4, section II.   Children Act 1989, s 1(1).

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What Is the Family Justice System?

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or agreed through mediation. This will be reviewed in chapter three. At this point, it will simply be noted that the statement disregards the evidence the government had itself produced in its Consultation Paper on Proposals to Reform Legal Aid (Ministry of Justice 2010a) that: 4.71 Since the requirement to consider mediation was made mandatory for the legally aided sector in 1997, the number of publicly funded mediations has risen year on year from 400 to almost 14,500 in 2009. This indicates clearly that by improving knowledge about mediation and the benefits it offers, the take-up of these services increases. The full and partial success rate of publicly funded mediations now stands at 70%. ... 4.157 The evidence also suggests that these cases can often be resolved by the parties reaching an agreement between themselves. In 2008, 73% of ancillary relief orders were not contested, indicating that the majority of individuals are able and willing to take responsibility for organising their own financial affairs following relationship breakdown. We propose to fund mediation in these cases, to support individuals to reach an agreement without recourse to the courts (as set out in paragraphs 4.69 to 4.72 above).

This information shows that, while ‘the full and partial’ success rates for publicly funded mediation stood at 70 per cent in 2009, 73 per cent of all ancillary relief orders in 2008 had been reached by agreement. Since mediation take-up is currently extremely low, almost all of these settlements would have been achieved through negotiation by lawyers and not through mediation. In fact, the actual settlement rate of all issues by lawyer-led negotiation will be much higher than 73 per cent because many agreements will not result in any order at all. The contrast with mediation is the more striking when it is remembered that lawyer-negotiated outcomes include resolutions to all disputes, even the most highly conflicted, whereas mediation cases undergo preliminary screening and are likely to be used only by parties who have some disposition to agree and both are willing to engage in the process. Despite this evidence, the Coalition government proposed to remove the provision of legal aid in most private law family cases (the most notable exclusion being where there was ‘objective evidence’ of child abuse or domestic violence), except where legal work was done ‘in connection with’ mediation (Ministry of Justice 2011a: para 57), and this was enacted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 9(1) and schedule 1, part 1, clause 12(2). Yet our account of the work of the family judges presented later in this book is fully consistent with that evidence.

III.  What Is the Family Justice System? It may be helpful to clarify how a family justice system should be understood. It is suggested that a family justice system can be described as comprising those

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institutions whose primary purpose is to define, protect and enforce the legal rights family members have as family members and to resolve conflicts between family members concerning those rights. The institutions include the court system (comprising the judiciary, court staff and court-based agencies), the legal profession and mediators in so far as mediation seeks settlement or compromise of legal rights and information providers on these matters. Groups, such as associations of experts who can be called upon to give evidence in family courts, could also be included. Furthermore, where assessment and enforcement processes concerning those rights are conferred on agencies outside the judicial system (such as the Child Maintenance and Enforcement Commission, and even the police, to the extent that they may be involved), these too must be included in the family justice system. But it excludes counselling, medical and psychotherapeutic services, social services, parental education or advisory services, financial advisers or other individuals or institutions designed primarily to support or improve the wellbeing of individuals or the functioning of their relationships since they are not directed at resolving legal issues or enforcing legal rights. However, such services are of great importance in support of the family justice system, so the interaction between such services and the family justice system needs to work well. In fact, some of the things those services do can be performed within elements of the family justice system itself. It is a central argument in this book that there is no sharp delineation of functions between these various actors. For example, judges and lawyers can be very concerned about the personal relationship between the parties. So, while the primary roles of the institutions of the family justice system are those described above, the evidence shows that these functions can sometimes be blended with approaches more fully adopted by the support services. The way this occurs is complex and not always well recognised. Cases are dealt with, and if they involve disputes, disposed of (successfully or otherwise), in various parts of the system. Disposition can take a number of forms. Two dominant approaches, ‘outcome-focused’ and ‘behaviour-focused’, are outlined in this book.9 These approaches can appear in a number of contexts. Either of them might underpin an agreed settlement, an administrative determin­ ation or a result achieved through judicial decision. Although most issues are disposed of elsewhere in the family justice system, the judiciary remains at its core. This is because, quite simply, the purpose of a justice system is ultimately to safeguard people’s legal rights. This does not, of course, mean that legal rights should be pursued or defended come what may. There may be many occasions when the responsible thing to do is to compromise, or even abandon, one’s legal rights. This could be said to be inherent in a full concept of responsibility (Eekelaar 2007: ch 5). But it is one thing to take a responsible decision to compromise or abandon your legal rights; it is another thing to yield without any knowledge of what your rights are, or, if you know them, to yield under undue pressure, or because you lack the means to protect them. The justice system is   See especially ch 2, section IV.

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Family Matters and Legal Rights

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there to try to prevent those things happening. And a justice system is anchored in the judiciary. Yet the role of the judiciary has not always been well understood. The Review Panel observed, in its Interim Report (Ministry of Justice 2011b: para 74), that ‘The judiciary remain central to the successful management of cases. We need to equip them to take firm control of a case and manage it efficiently, enabling them to take difficult decisions in challenging circumstances’. The Review maintained this position in its Final Report, and made extensive recommendations about how the ‘leadership and management’ role of the judiciary might be strengthened (Review Panel 2011: paras 2.106 ff). This perception of the judiciary as managers, not only of individual cases but also of a branch of the judicial system itself, is at odds with the usual public image, and indeed government perception, of the aloof and somewhat detached judge, who ‘holds the ring’ in an adversarial contest between the parties and imposes a decision at the conclusion. But it is, we believe, closer to the reality than the more common perceptions, and the evidence presented later10 will demonstrate why this is so. But we need to complete this opening chapter by explaining why we think that legal rights are important in family matters.

IV.  Family Matters and Legal Rights It might seem strange to have to defend the idea that legal rights have a role, often a significant role, in family life. But this has become necessary because statements in important Coalition government documents suggest that this idea might not be held by all policy-makers. In November 2010 the government issued a Consultation Paper on proposals it was making with regard to the provision of legal aid in England and Wales. It set out what it considered were ‘first principles’ for prioritising funding of access to the justice system (Ministry of Justice 2010a: para 2.8). It expressed one of them like this: there is a range of other cases which can very often result from a litigant’s own decisions in their personal life. . . . Where the issue is one which arises from the litigant’s own personal choices, we are less likely to consider that these cases concern issues of the highest importance (ibid: para 4.19).

Since family disputes clearly originate in circumstances arising initially from a person’s ‘own decisions in their personal life’ (such as getting married to a particular person) this principle led to a proposal to remove legal aid from all private law family disputes except in the case of applications for orders relating specific­ ally to domestic violence involving physical harm or where such orders had been made. Some funding would be available for mediation.   See ch 5.

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As an analytic tool, the criterion for deciding whether a case resulted from a litigant’s ‘own decisions in their personal life’ was inconsistent with other principles proclaimed in the Consultation Paper. For example, it was proposed that priority would be given to judicial review and criminal cases. The ‘principle’ that an issue ‘which arises from the litigant’s own personal choices’ is likely to be less important than others is illustrated in the Consultation Paper by reference to ‘immigration cases resulting from a decision about living, studying and working in the United Kingdom’. Yet an immigration decision could be challenged through judicial review, or an individual might be prosecuted for an immigration offence. Would the fact that such a case arose out of a ‘personal’ decision to live in the UK deprive it of its priority status? Surely the circumstances that led to the cases would be irrelevant. Similarly, one could ask why, if a person is the victim of fraud or other wrongdoing (for example, in buying or renting a house), should it matter that it arose out of a decision about where to live; or if a student brings judicial review against a university, why could it matter that the action arose out of a decision about where to study? In fact, it seems that the alleged ‘principle’ was really intended to establish that cases arising from private family disputes are inherently less serious than those involving other areas of the law, even though family disputes do not always arise out of one’s ‘personal choices’ because most family members do not choose one another, yet can be seriously affected by decisions and behaviours of other family members. It might even be hard to describe certain kinds of behaviour by one partner to the other as being a consequence of ‘personal choice’ in any morally relevant sense if it is unexpected and unwanted. Despite objections from 90 per cent of persons responding to the Consultation Paper (and support from only 3 per cent), in its final response the government maintained its stance on the low importance given to respecting legal rights in family issues. Indeed, it sharpened that perception in its reaction to fears that the withdrawal of legal aid would result in many more people having to conduct their own cases in court as ‘litigants in person’. The government regarded this with equanimity because it was unconcerned about the outcome of such cases: We do accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person as a result of these reforms and thus some worse outcomes materialising. But it is not the case that everyone is entitled to legal representation, funded by the taxpayer, for any dispute or to a particular outcome in litigation (Ministry of Justice 2011a: para 140, emphasis supplied)

It is indisputable that not everyone is entitled to publicly funded representation for any dispute. But to suggest that some people may not be entitled to a particular outcome in litigation implies that legal entitlements are of no relevance in litigation. While of course the content of the legal entitlements might be disputable, it cannot be that the adjudicator can decide on a whim and that litigation is no more than a lottery (Eekelaar 2011a). Is it possible to make a sensible assessment of how important family matters are if compared, for example, to cases where a person wishes to challenge a decision



An Historical Perspective

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by government that affects them, or faces criminal charges? It seems that any attempt at a generalised comparison would be very unwise. How does one compare the issues at stake in a decision whether a child is to receive visits from a parent against a charge for even a moderately serious criminal offence? Such matters are incommensurable. Mark Henaghan (2012: 258) has responded to questions posed in a Consultation Paper Reviewing the Family Court in New Zealand (New Zealand Ministry of Justice 2011) whether families should not be expected to resolve family issues themselves to a greater degree without free or subsidised services (including the justice system) by pointing out that major personal issues are at stake in family law disputes such as the parties continuing parental relationships with their children and future property and income issues . . . The parties are frequently in bitter disputes over their children and can be in an extremely distressed state. Power imbalances between the parties are common. If the matter was left to private resolution then we may be ‘governed by the law of the jungle’ (O’Donovan 1985: 198). This can put vulnerable parties and children at significant risk.

A brief historical perspective can underline why issues in the ‘private’ sphere can be very important.

V.  An Historical Perspective It is well known that societies have from time immemorial been ordered around status and kinship relationships. Even today, while the power of the monarchy has declined, and the pageantry of royal weddings may be more reflective of celebrity than, as in the past, of the construction of political alliances, family connections with a ruling elite can confer considerable power. All this requires rules: rules for determining the appropriate ordering of family relationships, for the manner of succession to positions of status, and the inheritance of wealth. It was recognition of this fact that led HLA Hart some 50 years ago to dispute the idea that law could be understood simply as commands of a sovereign individual (Hart 1961). Instead, he proposed that it comprised the union of rules rather like such commands (‘primary rules’) with other rules (‘secondary rules’) that needed to be satisfied in the creation of the primary rules, and that these secondary rules were accepted by ‘officials’ of the ‘system’. The secondary rules did not only identify the political rulers. They were, in Hart’s words, ‘power-conferring’ rules, and could operate at all levels of society. He highlighted those that enabled individuals to dispose of property by will. While Hart was understandably concerned with legal powers, it must not be forgotten that legal powers also underwrote social power. So a rule that identified a man as a father of a legitimate child gave that man power over the child; a rule that identified a man as a husband gave him power over his wife. This can be traced to distant antiquity. The earliest biblical laws viewed a wife as the property

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of her husband, as did the earliest Roman law, where a wife was married cum manu or lived with the husband for an unbroken period of a year, and a wife’s duty to obey her husband was a reality in common law even if it is now fading from the Christian marriage service. The Roman father’s power (patria potestas) over his children persisted even when the children became adults. Most early societies allowed fathers to sell their daughters into marriage, and the practice of forced marriage still persists in some communities. Such laws were manifestations of a type (or types) of social order. Our social order may be very different from those of the past. But we must not forget that legal patriarchal power has only recently been removed from our law, and legal parental power largely remains, although significantly qualified by the principle that the child’s welfare must be paramount at least when judicial decisions concerning children’s upbringing or property are concerned. More importantly, the social power still widely exercised by men over women and adults over children can have deep and permanent effects over people’s lives. From the earliest times societies have made provision for monitoring the way such powers were exercised. Some examples appear in Hammurabi’s Code of around 1600 BC: 137. If a man wishes to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart. 138. If a man wishes to separate from his wife who has borne him no children, he shall give her the amount of her purchase money and the dowry which she brought from her father’s house, and let her go. 139. If there was no purchase price he shall give her one mina of gold as a gift of release. 140. If he be a freed man he shall give her one-third of a mina of gold. 141. If a man’s wife, who lives in his house, wishes to leave it, plunges into debt, tries to ruin her house, neglects her husband, and is judicially convicted: if her husband offers her release, she may go on her way, and he gives her nothing as a gift of release. If her husband does not wish to release her, and if he takes another wife, she shall remain as servant in her husband’s house. 142. If a woman quarrels with her husband, and says: ‘You are not congenial to me,’ the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father’s house. 143. If she is not innocent, but leaves her husband, and ruins her house, neglecting her husband, this woman shall be cast into the water. 145. If a man takes a wife, and she bears him no children, and he intends to take another wife: if he take this second wife, and brings her into the house, this second wife shall not be allowed equality with his wife.



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148. If a man takes a wife, and she be seized by disease, if he then desires to take a second wife he shall not put away his wife, who has been attacked by disease, but he shall keep her in the house which he has built and support her so long as she lives. 149. If this woman does not wish to remain in her husband’s house, then he shall compensate her for the dowry that she brought with her from her father’s house, and she may go.

These prescriptions are attempts to maintain some equilibrium between individuals within a system of established rules. Sometimes the outcome is contingent on matters outside the parties’ control: not bearing a child, or suffering disease. Sometimes a judgement needs to be made about whether certain behaviour qualifies for the specified consequence: does the wife ‘neglect’ her husband? Has she good reason to dislike him? In either case, there needs to be some process that can ensure that the directed outcomes are achieved: in essence, that individuals are treated justly within the system. There is no reason to believe that such a process was not available under ancient Babylonian law. It would have constituted some form of family justice system. It is not difficult to see that, translated into today’s world, people may seek just resolution of many similar issues that can reach deep into the quality of their lives and their well-being on a daily basis, stretching sometimes across a lifetime, and raising matters of trust, loyalty, betrayal and selfidentity. Jordi Ribot (2011) has described family law as: a tool for seeking an answer to the individual’s request for justice within family relationships. It is this endeavour for justice, which lies at the heart of any branch of private law, which makes family law plausible and necessary, regardless of how important the symbolic messages conveyed by legal provisions are or how beneficial the ultimate goals sought by them might be . . . Family law is thus a set of rules devised to provide individuals with tools to pursue their legitimate claims in family matters and that seeks to render them a fair outcome by defining the parties’ mutual entitlements.

There is a further reason why the issues falling within the remit of a family just­ ice system have peculiar significance. David Willetts (2010: 132) has remarked that while ‘in the rest of our lives we are divided more horizontally by our age group, working with and living in communities of people of our age’, the family is the one institution that spans generations vertically and is therefore ‘so important for delivering the intergenerational contract’. Decisions which maintain some equilibrium within the power imbalances inside families can also have important consequences for the way relationships between generations develop and are exercised. All this is the business of the family justice system. It is very important, however, to understand that appreciation of the signific­ ance of legal regulation of family issues does not imply that all aspects of family, or personal, relationships need to be, or even should be, legally regulated. It can be strongly argued that there should be a ‘sphere of personal interaction’ which is ‘privileged’ in the sense of being outside public scrutiny and knowledge (Eekelaar 2007: 82–102), and, furthermore, that, while always upholding the operation of the general law (such as the criminal law), the state should be slow to translate the

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social and moral norms defining obligations within functioning families into legal norms unless their failure threatens community interests, or where it is necessary to achieve justice when families fall apart (Eekelaar 2011b). However, the demarcation between occasions for legal intervention and non-intervention is itself a matter of law, and accordingly within the remit of the family justice system. A final point needs to be made at this introductory stage. The discussion above has assumed that the community within which family norms are applied is relatively homogenous. But the real world is different. Cultural and religious variation is frequently manifested in the family norms between groups. Not only may the social norms be different but the understanding of justice in the way they are applied might not be uniform. This poses another problem for the justice system of the majority community, and in particular the family justice system. This will be considered in chapter nine.11

  See ch 9, section 6.

11

2 Family Justice: Outcome-focused and Behaviour-focused Approaches In a brief functional analysis of ‘family process’ Frank Sander (1984: xv) gives the example of the McGuires of Nebraska: After many years of marriage the wife brought suit to have the court order adequate support from a husband who clearly did not treat her in the manner his means would justify. Although he had $200,000 or more of assets, he did not provide her with indoor plumbing and did not afford her many of the amenities suitable to one of his station. But the court rejected the suit on the ground that it was inappropriate for the courts to get involved in this kind of dispute. If the court did so, it would have more business than it could handle, and besides, it was extremely difficult for the court to monitor this kind of disagreement.

Sander observes of the case: The obvious need in such cases is for some type of conciliation or therapy that will explore what is fundamentally a relational dispute. . . . Although the court . . . reached the right conclusion, the more persuasive reason is not that the courts would be flooded if such cases were presented to them. It is rather that they are really incompetent to deal with the essential problem being presented to them and poorly equipped to monitor the ongoing relationship. In such cases the state should provide ready access to an agency furnishing family counselling or mediation.

Sander’s suggestion that the problem be approached by state provision of counselling or mediation implies that the matter may be resolved by having both parties accept, or be reconciled to, a state of affairs, whatever it was. That is, as long as the parties agreed, the outcome would be acceptable. So if, for example, the wife’s conditions remained unaltered, but she was persuaded that it was a wife’s duty to accept them; or that there were sufficient other benefits in the relationship that she should not put those at risk by her protests; or even that the costs of contesting the disadvantages she felt she was under outweighed the disadvantages of submission to the circumstances: all this would be acceptable because the nature of the final arrangements would be subordinate to the prize of ‘healing’ (in some form) of the McGuires’ relationship. It should be stressed that the ‘healing’ need not necessarily imply that Mrs McGuire is pleased with her situation. But she has at least decided to put up with it and stay in the relationship. This approach seeks to find a solution through modifying the expectations and, therefore, the behaviour of the parties. We might describe this as a ‘behaviour-focused’ solution.

16

Outcome- and Behaviour-focused Approaches

Yet suppose Mrs McGuire had decided that the relationship was finished, and left, and Mr McGuire still refused to make any provision for her. Should the aim in this event be to use counselling and mediation in the way described above so as to reach a ‘behaviour-focused’ solution, where any outcome was acceptable so long as it was produced by the parties’ own actions? Here the prize of healing the relationship, in the sense described above, might not look so valuable. There may be some benefits. It could be that by not becoming embroiled in trying to resolve that issue, dealings between the parties are made easier. This might be important if there are children. There might also be savings in the costs (both financial and emotional) that would arise in an attempt to resolve it. But against these must be set a sense that the outcome may not be fair for either one, or both, of the McGuires, and might even be detrimental to the children. An approach which pays attention to this loss can be said to be ‘outcome-focused’.

I.  Impartiality, Processes and Outcomes Contemplating how a society ensures that people are treated fairly has been a major intellectual endeavour for many centuries. The most elaborate recent exercise was by John Rawls (Rawls 1971, 2001). Rawls was concerned with distributive justice; that is, the way goods and benefits should be distributed within societies, whereas the case described above raises an issue of commutative justice, which is concerned with fairness in dealings between individuals. Nevertheless, some concepts may be shared between the two. One is ‘fairness’. Rawls argued that distributive justice would best be achieved through a fair method of distribution. By fair, he meant a method which ensured that goods would be distributed impartially. He sought to achieve this impartiality through an elaborate imaginary decisional structure whereby all members of society would decide on the principles of distribution behind a ‘veil of ignorance’, which concealed from them information about their place and condition in the society. This would guarantee impartiality and a fair distribution. Rawls then proceeded to develop the principles he thought reasonable people would agree in those circumstances. These principles are not relevant for our purposes. However, the idea of fairness is relevant, and impartiality is an essential ingredient of acting fairly. It is one of the twin pillars of the legal concept of procedural ‘natural justice’ (the other is the necessity to hear all parties to a dispute). Clearly, the parties to a dispute are not impartial. They could only reach an impartial outcome under Rawlsian methodology if they were able to erase all personal knowledge and feelings. Since they obviously cannot do this, another method, suggested originally by Adam Smith, and preferred by Amartya Sen (2009), is available through the device of the ‘impartial spectator’. One would have to ask how an imaginary impartial spectator would decide to make the distribution.



Impartiality, Processes and Outcomes

17

So, if one is persuaded by this view, fairness seems to require the involvement, in some way, of an ‘impartial’ entity. This, however, only addresses part of the issue. For we need to know what the impartial entity needs to assess, and, ultimately, by what criteria the impartial entity makes the assessment. The reasoning above suggested that the impartial entity would need to look at the ‘outcome’. But is this necessarily so? Might it be that the impartial entity need only consider the process by which the ‘outcome’ was reached, so that, if the impartial entity considers that the parties have, in fact, used a fair method of reaching the ‘outcome’, that is sufficient to satisfy the requirement of fairness? Although Rawls thought this would be enough, Sen does not think so. He does not think that just institutions and methods will inevitably produce just results, given the nature of the real world (Sen 2009: 412). He does not dismiss the importance of processes. But in his view, you must look at both the processes and the eventual outcome. He calls the two together ‘comprehensive outcomes’ (Sen 2009: 215). There is ample empirical evidence to support the view that perceptions of fairness of outcome are determined both by the nature of the outcome and the procedure by which it is reached (Tyler 2006). So when we use the expression ‘outcome-focused’ we use ‘outcome’ in the comprehensive sense as including both the actual result and the method by which it was reached. If we apply this analysis to commutative justice, and to the McGuires, we can say that the behaviour-focused approach is willing to accept the outcomes that follow from the parties’ interactions, whatever they were. The fact that the outcome has been fashioned by interaction between the parties (even with some assistance) is in itself the ground for its acceptability. However, there is no basis for holding these outcomes, or the processes that led to them, to be fair. If the McGuires are still living together, perhaps that does not matter. They have avoided overt conflict and set their own levels of tolerance of the outcome for the benefits of a continued life together. But if the McGuires had separated, the value of maintaining the relationship is weaker and the effects on them of their differing circumstances are larger. The arrangements they agree may be fair, but this can only be known if an impartial spectator would agree with them. Fortunately for the McGuires an equivalent of the impartial spectator is available to make the necessary assessment. It is the family justice system. This, ideally, provides an impartial body. This impartiality is underlined by the authority of the judge and the nature of legal processes. But, as mentioned earlier, that addresses only part of the issue. By what criteria is the impartial spectator to assess the issue? These must be the values, goals and policies of the social context in which the dispute arises: in short, the law. We do not suppose that the law always provides clear-cut solutions to all problems. The ‘impartial spectator’ (the judge) must often exercise judgement. But apart from that issue, the quality of the law, and how it comes about, are beyond the scope of this book. They are political questions which raise issues of justice at another level. But the fact that the family justice system operates within this legally established framework is of the first importance.

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Outcome- and Behaviour-focused Approaches

II.  A Third Approach: Abstention Thus far, we have seen that the state might provide the McGuires with counselling or mediation, in which the primary focus would be repairing (in some way) the relationship between them so that it continues in at least some form tolerable to both, irrespective of the actual outcome concerning the matters initially in dispute. Alternatively, the state may attempt a ‘fair’ resolution of the matters in dispute using the mechanism of an impartial entity charged with reaching a ‘comprehensive outcome’. There is another possibility. The state may simply do nothing. This is really what the Nebraskan court decided in the McGuires’ case. It was worried about being overwhelmed by such cases, and the difficulties of monitoring any decision it might make. These are good reasons, which form part of a larger policy strategy. That strategy is one which says that it is important that an area of behaviour within families should be left to be determined by the family members themselves, without intervention by the state through its laws. Family members, it could be said, follow a variety of ‘moral’ or ‘social’ rules in their dealings with one another, and, provided family life is generally healthy, it would be best to allow them to regulate themselves. Perhaps the law could articulate rules or principles for determining the domestic facilities that a husband should provide for his wife’s use; how they should manage their domestic budget; how much they should spend on their children. But there are at least two powerful arguments against it doing this. The first is that the abstract nature of legal precepts and the bureaucratic nature of the legal process make it very difficult for the social reality of such intra-familial matters to be properly reflected in the legal process. The second, and much more significant, reason is that the uniform imposition of state rules within family life effectively incorporates families into the state structure. This would constitute a significant step towards a totalitarian state. It is also possible that the over-regulation of people’s lives by legal rules diminishes the capacity for the observance and development of moral behaviour. So it might be said that any rules of behaviour over which the McGuires were in disagreement were not substitutable by laws of the state, and that the state accordingly had no interest in the outcome. Against this, it might be said that the state need not assume such a totalitarian role, and could yet provide a means for resolving the dispute between the McGuires. The argument would be that the state can leave most families to determine their own behaviour because the vast majority of family members work cooperatively and, if they have disagreements, resolve them without calling on the courts. However, this should not (it might be maintained) deter courts from providing solutions if their assistance is invoked by a family member. This argument has some force, and is compelling if the family member can point to some specific law, or existing legal principle, such as from the law of trusts, or contract, to support their case. But unless the law was to use either some very general standard,



Child-centred Cases

19

such as that family members must distribute resources fairly or reasonably among themselves, or to adopt a different tactic and develop some very precise, almost mechanistic rules, it is hard to know how cases like that of the McGuires could be resolved. In either case, the worries about excessive intrusion would remain. However, the point being made is a limited one. It does not imply that state laws do not apply within the family. In fact, some laws, such as criminal laws against domestic violence, or child protection laws, might even be given additional scope within the family, given the added risks and harms to which victims within families are exposed. And are there not important differences between the actual McGuire case and the variant which assumes their separation? In the case of separation it cannot be so readily assumed (if it can be assumed at all) that the parties will co-operate in following existing moral or social rules regarding their dealings after separation. Indeed, there may be no discernible rules of that kind at all. Or, if there are, they may not lead to fair results. Third-party interests (whether those of the children of the marriage, or those of actual or potential new partners and children) may be at stake. Even the state’s interests may be involved, if, for example, one of the parties is forced to rely on state benefits. So in those circumstances the case for the state doing nothing is very weak indeed.

III.  Child-centred Cases Imagine the following circumstances (based on Maclean and Eekelaar 2009: 82–90). A mother comes unexpectedly into the bedroom of her children (boys aged four and six) and thinks she sees her husband touching the younger one inappropriately. The husband denies this. The mother questions the children and gets conflicting accounts. She asks her husband to leave and calls the police. But the children do not clearly confirm the allegation to them and they decide they can take no action. The mother nevertheless ends the marriage. She wants the children to maintain a relationship with their father, but not to see him alone. He protests. Is this simply a dispute between parents? If it were, it might be resolved through counselling or mediation. It certainly seems inadvisable to do nothing, for, while the matter might resolve itself over time, while it remained unresolved, the parents and the children are likely to experience considerable stress and the parents could find it difficult to make practical arrangements concerning the children. An important stage in the growth of the relationships between the children and their parents could be seriously harmed. But is it enough just to resolve the issue between the parents, without any consideration of implications of the achieved outcome for the children? Might some impartial entity be needed to form a view about whether the incident actually happened, or whether there might be other grounds for thinking the children

20

Outcome- and Behaviour-focused Approaches

might be at risk from the father? The impartial entity can decide either that the evidence is sufficient to hold that the children are at risk, or that there is insufficient evidence to conclude that they are at risk. In the former eventuality, the father’s contact may be restricted, or supervised. If he is innocent, the restrictions will not have been necessary, but the prejudice to the father’s interests will not have been excessive. If he is not, the restrictions will be an important safeguard to the children’s interests. If the evidence is held to be insufficient, the father may end up with unrestricted contact with the children, so, if he is indeed innocent, he has been treated fairly. If the impartial entity has got it wrong, and he is not innocent, while the risk to the children has not been removed, the father has at least been given a serious warning of the consequences of further misconduct. This, it might be said, is a somewhat unusual case. Most children are not at particular risk from either of their parents. But if the parents are in dispute over the children, should the outcome be subordinate to the way the parents decide to negotiate their relationship, as described when discussing possible approaches to the McGuire case? Which is to be prioritised, the children’s welfare or the willingness of either or both the parents to live with the situation? Eva Ryrstedt (2012) has described the dynamic of mediation processes in Sweden as usually being a form of ‘negotiation’ between the parents over what arrangements best suit their circumstances, and is not ‘focused’ on the best interests of the child. Usually the authorities are willing to accept an agreement reached in this way because reaching agreement is seen to be the paramount goal of the process. If that is the case, the model seems hard to support in a context where legal policy places primary importance on the children’s welfare. However, the matter is complicated by the fact that there is very strong evidence that the state of the relationship between the parents and the outcome for the children are closely linked. That is to say, the effect of the arrangements on the children’s welfare is related to the extent of co-operation or conflict between the parents. This might appear to reduce the role of the impartial entity because, as long as the relationship is positive, the outcome for the children is likely to be favourable no matter what arrangements are made. If so, there is no need for an impartial entity to decide what they should be. That is a strong argument. However, an impartial entity might still be important, for a number of reasons. Can we be completely sure that, in maintaining a positive relationship between themselves, the parents have paid sufficient attention to the children’s interests? For example, it might suit both of them for the children to spend a long period at boarding school, which harmed their relationship with the children. There might also be a question about the extent to which the parents’ difficulties have really been resolved. What level of ongoing conflict can be tolerated without adverse consequences for the children? So, while children are generally best served when the parents have overcome their differences, and this seems to favour a behaviour-focused approach, it should not be forgotten that the nature of the parties’ relationship should not be seen as an end in itself in assessing the outcome from the children’s perspective. While a behaviour-focused approach can have great relevance, ultimately the



The Intervention Options Reconsidered

21

focus should be on the outcome. So it seems that there is a role for an impartial entity in child-centred cases too. Somewhat different considerations arise in relation to child welfare, or child protection, issues. In England and Wales, state agencies are under a general remit to safeguard and promote the welfare of children in need and to inquire into circumstances where they have reasonable cause to believe that a child is suffering, or is likely to suffer, significant harm,1 and, indeed, to make arrangements to improve their general well-being.2 It is here where individuals can encounter some of the most significant exercises of state power outside the criminal law, for ‘authority’ may seek to monitor or control the most intimate aspects of the way a parent or other person looks after a child. Ultimately, the state may physically remove the child, and even sever the parental relationship for ever. So not only are very important interests of the parents at stake; those interests are threatened, not by another individual, but by institutions with enormously greater power and resources than the parents. Of course, very important interests of the children are also at stake, perhaps even their lives. But that only serves to underline the import­ ance of ensuring that the state authorities are accountable for their actions, and accountability requires the presence of some kind of impartial entity.

IV.  The Intervention Options Reconsidered: the Nature of Relevant State Institutions We have seen that the options for the state appear to be between ignoring or at least downplaying the issue in dispute while focusing on repairing the relationship between the parties so that it continues in some workable form and seeking a fair solution of the dispute, which could involve consideration by an impartial spectator of both the process and the outcome (the ‘comprehensive outcome’). In the McGuire case itself, the prize for the subordination of the outcome to the acceptance by the parties was the maintenance of the ongoing relationship, however flawed. Of course, whether that is a true prize or poisoned chalice is a serious question. In the case of separation, it seemed harder to downplay the outcome because the sense of fair treatment would be sacrificed in favour of promoting easier dealings between the parties and saving costs. While these are worthy goals, the sacrifice of fairness seems a heavy price to pay, and the first (easier dealings between the parties) could be difficult to achieve without fairness, and the second (saving costs) might be achieved in different ways. When third-party interests are included, such as those of children, it becomes even harder to downplay the nature of the outcome.   Children Act 1989, ss 17, 47.   Children Act 2004, s 10.

1 2

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Outcome- and Behaviour-focused Approaches

It will be a theme of this book that the two approaches, behaviour-focused and outcome-focused, have been historically and are still in tension. A key issue for the family justice system is how to find an effective balance between them. This raises the further question: in which institutions are they most appropriately pursued? It would seem natural that those processes that seem to call for an impartial entity to determine the fairness of an outcome ought to take place within the family justice system. There has, however, been considerable discussion whether this is necessarily the case. For example, it might be argued that the parties themselves are better placed to assess the fairness of an outcome than a court; or that the outcome might be determined in advance by the parties by entering into a kind of contract (such as a prenuptial agreement), which will apply without resort to court proceedings in predetermined circumstances. Even so, the courts, or at least the legal profession, may be needed in order to assist the parties to draw up a fair contract, interpret it and determine its consequences. But an entirely contrary approach is possible. It might be argued that, in family cases, courts themselves should reduce, or even abandon, the quest for fair outcomes and adopt a primarily ‘behaviour-focused’ approach. True, they might draw on the services of non-legal professionals in doing this and these could be located in a court setting, and the direction and progress of the case co-ordinated by court staff, perhaps even a judge. It is even possible that the relationship would remain in some sense under the court’s jurisdiction for some considerable time while arrangements are monitored, or subsequent disruptions in them are reconsidered. In any event, while some disputes might need to be resolved, the primary goal would be mending, to as high a degree possible, the relationships between the people involved, or helping them to find workable solutions that make life as tolerable as can be in the circumstances.

V.  Organisation of What Follows The preceding analysis was intended to expose the issues and, to some extent, the principles that should inform the foundations of a family justice system. In what follows, we will first outline the structure of the institutional arrangements for dealing with the kinds of family problems mentioned above as they stood at time of completion (February 2013), starting with the main professional groups involved, lawyers and mediators, and then examining the way court and courtrelated structures have evolved to deal with them. We then present our empirical findings on how the judiciary in the lower courts in England and Wales deal with family matters that come before them. We first analyse the various roles that the judges perform in dealing with the cases that come before them, in order to understand better the nature of their task. We then look at their work in more detail, presenting a more holistic view of how they organise a typical day’s work



Organisation of What Follows

23

and exploring how the roles are differentially distributed between Circuit Judges, District Judges and Legal Advisers in Family Proceedings Courts. Since we are following the position taken by the Review Panel that ‘children’s interests are central to the operation of the family justice system’ (Review Panel 2011: Executive Summary, para 8), we then consider how the court system handles public law cases concerning children, then private law disputes relating to children and, finally, disputes over financial matters, including child support. In that final chapter we will also consider issues and initiatives which pose distinctive problems for family justice in what might be seen as a ‘late modern’ environment. Attention will be focused on the system in England and Wales, but comparisons with other systems will be made to inform the discussion.

3 Lawyers and Mediators: Towards Greater Collaboration? At first glance, it would seem that the legal profession would be primarily, even exclusively, concerned with outcomes in the sense used earlier, and that mediators would only be concerned with behaviour. That perception would be consistent with their training, as described by Webley (2010: 124) who characterises that of solicitors as being primarily knowledge-based, supplemented by promotion of advocacy and litigation skills, and that of mediators as being more skills-based directed at assisting clients to reach their own decisions, with little reference to a normative structure within which the agreement should be located. However, both professions are subject to the tension between outcome- and behaviourfocused approaches, and the apparently stark distinction between them, reflected in the training regimes, becomes blurred on closer examination.

I.  Family Law Practice A.  Litigation and Mediation: the False Dichotomy Family law practice has tended to be described by way of contrast with mediation. The advantages of resolving family disputes through mediation are frequently contrasted, in almost ritualistic fashion, with the disadvantages of court-determined outcomes. This is because the contrast is based on the assumption that the legal process always involves ‘litigation’, in the sense of appearances in court and a ruling by a judge. Thus, in a major English text on family mediation, Roberts (2008: 36) identifies among the advantages of mediation that it is forward-looking whereas a judge ‘looks backwards’ and contrasts mediation outcomes with the ‘once-and-forall’ nature of a court’s decision and the ‘win/lose nature of the judge’s order’. This is a false contrast for a number of reasons. First, as the evidence presented in chapters five and six will show, adjudication is but one of a number of roles performed by judges in family cases. The greater part of their work involves precisely planning for the future. But even where they do adjudicate, many, perhaps most, court adjudications in family law involve ‘looking forward’ at least as much as ‘looking backwards’.

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Lawyers and Mediators

In public law cases, as we will see, the courts are routinely concerned with how any order they may make will affect the child’s welfare in the future, and in private law cases involving residence, contact or care, the court is required to treat the child’s welfare (that is, its future welfare) as paramount. And many orders, especially in private law cases, can be revisited as circumstances change (see Eekelaar 1995). Apart from that, it is in any case rare for any family disputes to reach court at all. In England and Wales, a survey for the Office of National Statistics (ONS) showed that only about 10 per cent of the most common issues that arise regarding children, namely, arrangements after parental separation, are dealt with by courts (Blackwell and Dawe 2003: 5.1; Lader 2008: 12). We have already referred to the evidence that about three-quarters of ancillary relief orders on financial matters are made by consent.1 While the ONS data showed that most arrangements about children are decided informally between the parties, with a small proportion (about 6 per cent) reached with the help of mediators or lawyers, most of those financial settlements would have been reached through negotiation by lawyers. In fact, since many financial agreements will not result in any order at all, the settlement rate achieved by lawyers will be higher than the three-quarters mentioned. Initial results from a representative sample of 3000 adults by Barlow and Hunter (2012) showed that, of the 288 people in their sample who had divorced or separated since 1996, 53 per cent had sought legal advice on issues connected with the divorce, and, of those, a further 70 went further and used lawyers in negotiations. A further 46 used mediation, but in all those cases except one, they had also sought legal advice. So the relevant comparison is not between attempting settlement by mediation and submitting to judicial determination (adjudication), but between settlement by mediation and settlement with legal assistance, or by mediation together with legal assistance. Yet successive governments have made the assumption that the only options were mediation or adjudication. In 1999, Lord Irvine of Lairg, then Lord Chancellor, in promoting the benefits of mediation, said: ‘Parties are more likely to adhere to agreements they have made themselves rather than orders that have been imposed from outside’.2 Eleven years later, the then Lord Chancellor and Secretary of State for Justice, Kenneth Clarke, repeated the comparison. When asked whether he would then encourage mediation, he replied that mediation was a very good idea, and that adversarial litigation could be positively destructive with thousands of pounds spent on litigation and repeated hearings.3 Once again, mediation and litigation were presented as the only options available.

  See ch 1, section II.E.   Speech to UK Family Law Conference, Inner Temple, London 25 June 1999. 3   Interview in Law in Action, BBC Radio 4, 28 October 2010. 1 2



Family Law Practice

27

B.  Evidence Concerning Family Law Practice The first important study of family law practice in England was reported in 1980 (Murch 1980). 102 divorce petitioners were asked about their satisfaction with various people involved in the divorce process. To his surprise, Murch found that solicitors were viewed more favourably than any other professional worker ‘with the possible exception of family doctors’. Indeed, 56 per cent of interviewees were ‘very satisfied’ with them. Murch (1980: 35) surmised that the ‘continuous involvement’ of solicitors in the particular drama of the divorce, often from the point of marriage breakdown to remarriage some years later, makes (the solicitor) a key figure with power both to control the direction of future events, and to guide clients through the uncertainties of complex legal procedure.

It could be argued, he said, that the partisan role of a solicitor ‘offers an important social mechanism for the safe management of emotional conflict, apart from its value as a method of determining conflicting interests’ (Murch 1980: 36). Slightly later, Sarat and Felstiner (1986; see also Felstiner and Sarat 1988) observed and taped 115 lawyer-client conferences in the United States. This was one of the first studies which produced evidence that contradicted the image that lawyers routinely sought to exacerbate conflict between divorcing clients. The researchers said that doing that would be an ‘exceptional’ event. Instead, they reported that ‘to the lawyer the client’s anger . . . and distrust . . . are obstacles to closure rather than legitimate client interests’ (Sarat and Felstiner 1986: 129). They considered that a good deal of client anger could be accounted for by dissatisfaction with the law itself. It was the lawyer’s task to make the client confront what the client might think are the law’s shortcomings, in particular its uncertainties and limitations, and offer his or her expertise as an ‘insider’ with knowledge of how the system works and to find the best way through it. A much larger examination of the way the divorce process worked in England and Wales during the early 1980s was undertaken by Gwynn Davis (Davis 1988). It was based on five studies. One was of 3000 court files and observations of 1500 ‘child appointments’;4 another was a court-based mediation project (84 cases) and interviews with 40 solicitors; another was a follow-up on the impact of these procedures on costs; another involved further discussions with solicitors and observations of mediation; and the last involved interviews with 299 recently divorced couples. Davis found wide variation in the way solicitors handled clients in family law cases. The profession sought to address this by the establishment, in 1982 (when the research was being conducted), of the Solicitors Family Law 4   At that time, before a divorce could be granted, judges needed to be satisfied that the arrangements for the children were satisfactory or the best that could be made in the circumstances. They usually had a short meeting with the petitioner to consider the arrangements. Since the judge could do little or nothing to affect the arrangements, they came to be seen as superfluous.

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Lawyers and Mediators

Association (SFLA) (later known as Resolution) which set out to promote a nonadversarial ethos for the practice of family law through practice protocols and dissemination of information. Davis’s central conclusion, however, was that the ‘system’ as a whole, both the legal process and, where they operated, schemes for mediation, was geared to ‘rationing’ access to courts; to try as far as possible to keep cases away from judicial determination. He argued that this could be perceived as denying people justice: It is inevitable that a procedure which is concocted as a form of rationing, rather than as a means of expressing valued principles of justice, will serve the interests of courts and professional personnel rather than litigants. ‘Settlements’ arrived at in these circumstances may not make the slightest contribution to the resolution of the problem as this is experienced by the parties’ (Davis 1988: 203).

His criticism of lawyers’ negotiations, then, is exactly the opposite to the perception of the legal process characteristically put forward in contrast to mediation. It is that lawyers were too ready to avoid judicial determination and reach agreed settlements. Davis complained of ‘highly problematic bargaining (or shabby horse-trading) in which legal advisers engage as they attempt to “settle” cases without resort to litigation’ (Davis 1988: 204). Of course, this also implies that criticisms made by proponents of the legal process against mediation, namely, that it could unnecessarily compromise people’s entitlements, could also be levelled at the legal process. Davis reports that, although 45 per cent of the divorcing people interviewed thought the solicitor had been ‘very helpful’, and only 7 per cent thought their own solicitor had been unnecessarily forceful or aggressive, many were dissatisfied with their willingness to compromise, especially on court premises, and thought that the solicitors were too dismissive of their views (Davis 1988: 114–22). A much smaller study by Ingleby (1992) monitored 60 matrimonial cases from five solicitors’ practices during 1985–87. This also concluded that the solicitors had a strong preference to seek solutions through non-contentious negotiation. Ingleby confronted the question whether this led to clients being ‘sold out’. He observes (Ingleby 1992: 161–62) that this is almost impossible to assess because of the difficulty of knowing what the outcome would have been had the case gone to adjudication. He also distinguishes between ‘negotiation’ (which refers to an entire process involving building up a relationship with the other solicitor, and a large amount of procedural and non-contentious subject matter) and ‘bargaining’ (an exchange of particular offers), and notes that the latter is only one element in a process which can involve a variety of techniques, from voluntary concession and persuasion to more robust threats of action. In the next study, Davis et al (1994) followed 80 divorce cases over the period 1988–91, interviewing the parties and solicitors in most of them. The researchers again found that the ethos of settlement was ‘pervasive’ (Davis et al 1994: 262). However, they advanced a new perspective on it. They suggested that the most useful contrast was not between settlement-seeking and litigious lawyers, but



Family Law Practice

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between proactive and reactive styles (they used the terms ‘activity’ and ‘responsive’). Clients, they reported, preferred, and expected, the lawyer to be proactive in moving the case forward, whereas most solicitors were reactive, tending to let things lie until some event occurred. This in itself tended to lead to cases resolving without adjudication: ‘The system is characterized by settlement, but not necessarily by settlement-seeking; instead it is characterized by delay’ (Davis et al 1994: 257). Somewhat inconsistently, the authors also observed that most solicitors wished to take the proactive step of applying to a court as soon as possible in order to speed the process and reduce costs (Davis et al 1994: 99–100). As in Davis (1988), these authors expressed concern that settlement could lead to unfairness, especially for women. They attributed its prevalence to a case management style by solicitors who, for economic reasons, needed to take more cases than they could easily handle. A later study, combining direct observation of the working practices of 10 solicitors, and discussion of a case file with 40 other solicitors, gave a more fine-grained view of the work of divorce solicitors (Eekelaar et al 2000). The study also found a predominance of settlement over adjudication: Once again, the overwhelming push towards settlement comes across, to the extent that there were only two cases (out of 40) where a solution regarding property or finances had to be imposed after a full hearing, one regarding protection against violence . . . and one regarding residence, and prohibited steps orders. However, the court was frequently used as an aid to the settlement process (Eekelaar et al 2000: 108).

The factors contributing to the duration of cases was analysed. While some delays were attributable to errors by solicitors, many were caused by obstructiveness of clients, problems in gathering the necessary information, and the intrusion of extraneous matters. But lapse of time could be used constructively: for example, where the solicitor held back from lodging a divorce petition because the client was prevaricating over whether they really wanted it, or where it was thought better to try to settle matters consecutively rather than all together (Eekelaar et al 2000: ch 8). Court applications tended to be made in cases where one of the parties had little incentive to settle (Eekelaar et al 2000: 118–22). The study confirmed that there was often a mismatch between the aspirations of the client and the solicitors’ perceptions of what was a realistic outcome. Thus a very important part of the interaction between them was the ‘position’ adopted as a result of a complicated process of negotiation between solicitor and client. There are three elements to this negotiation: the lawyer’s perception of the client’s interests, the normative standards set by the law (and also perceived ethical behaviour) and the expression of client autonomy as revealed in the client’s instructions (Eekelaar et al 2000: 90).

This was called the ‘decisional matrix.’ These elements did not always coincide. The negotiation sought as far as possible to bring them into alignment. In doing this:

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Lawyers and Mediators Solicitors do not see their task as being to teach their clients how to behave. That forms no part of the negotiation between them. Rather, the negotiation is over the best way to secure the client’s interests given the parameters set by the decisional matrix (Eekelaar et al 2000: 100).

Where solicitors are unable to align a client’s instructions with the other elements, the client’s instruction will prevail, although this can cause solicitors considerable frustration. A similar process has been described in the case of divorce lawyers in the United States, although in that case the researchers found that lawyers might threaten to cease representing the client if they could not reach an agreed position (Mather et al 1995). The fact of misalignment between clients’ expectations and the norms and realities of the law, and the lawyers’ role in reconciling (as far as possible) the two may account for the dissatisfaction of clients noted by Davis (1988) and echoes the comments of Sarat and Felstiner (1986) that clients found it difficult to come to terms with the reality of the limitations of the legal system. Eekelaar et al (2000) drew attention to another aspect of the role of solicitors which had received little attention hitherto. This was the provision of reassurance, information, advice and practical support. The information included practical non-legal information, mostly of a financial nature, such as house prices: Solicitors did not see themselves as financial advisers in the technical sense. In complex matters they would prefer to recommend that the client should seek specialist advice. But they were very ready to offer practical advice on how to get a grip on the household economy, ride out the crisis and prepare for longer-term solutions. (Examples given). These examples show how advice merges into assistance. But frequently the assistance took the form of practical action by solicitors themselves. One, for example, searched the companies register to keep track of the husband’s financial activities; another organised a valuation of the property and ascertained the value of endowment policies. . . . Checking on a husband’s assets, by contacting pension companies, or obtaining other forms of documentary evidence, were common (Eekelaar et al 2000: 83–85).

The English studies discussed so far referred to the work of solicitors, because under the dual structure of the legal profession in England and Wales, until 2004, a solicitor was the lawyer whom a client needed to contact in the first instance. After 2004, the public may have direct access to a barrister, but this is primarily for advice, as the barrister cannot take general responsibility for the client’s case, such as writing letters, issuing proceedings and so on. Solicitors may call on barristers (counsel) for specialist opinions. They must use a barrister for any proceedings at the level of the High Court or above, unless they have been specifically granted rights of audience, and will often do so for proceedings in the magistrates’ courts and county courts. Here again the popular image of the barrister, drawn largely from criminal trials, gives a very misleading impression of the work of barristers in family cases (Maclean and Eekelaar 2009). Barristers usually deal with those cases which are the hardest to settle, because the others will have been disposed of by the solicitors. They are usually introduced into the dispute at a time



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when a hearing for some kind of direction or ruling by a judge is imminent. Clients are therefore under maximum stress, and the barrister needs to explain to the client what is happening, provide reassurance and display authority in dealings with the court and the other party. At the same time, since the pressure to settle is at its height, they need to check facts and question the client to assess not only the strength of the case but also the scope for movement in discussions with the other side. This is done within extreme time constraints. The barrister will also negotiate with the court for time to pursue discussions with the other party and, of course, attempt to arrive at an agreed outcome with that party. The barrister will need to make sure that the client understands any proposed settlement, or any order by the court. At the end of a typical encounter, the study concludes: What has been achieved? A dispute has been managed, pro tem. The available information has been rigorously tested, and hopefully this injection of reality has led to a settlement, though agreement may be too strong a word. Where agreement has not been possible, and any aspect of the matter has reached adjudication, the decision taken should have been reached which places the interests of any children first. A sometimes bewildered client has had the goings-on explained, been comforted, been protected from hostility from antagonists, been prepared for disappointment in the outcome and, perhaps most important, his or her viewpoint has been represented. Given that any case which reaches a barrister, other than those where counsel is being used only for advice or settlement in conference, is deeply conflicted and entrenched, or, in a public law setting, has set up the state bureaucracy against an often vulnerable individual, this is an impressive result (Maclean and Eekelaar 2009: 121).

A later English study that observed legal representatives in care proceedings came to similar conclusions. In these especially stressful cases, lawyers not only looked after the interests of their clients, where possible furthering them through negotiation with other lawyers, or advising them to concede where the opposing case was strong and clients were considered too emotionally fragile to cope with a contest, but also sometimes offering advice and assistance outside the court, for example, how to access health or other services, finding accommodation and sometimes even providing money for lunch and (in a couple of cases) cleaning their homes! (Pearce and Masson 2011). Evidence about the approaches taken by family lawyers in Australia produced similar results. In a study of 230 Australian family lawyers and 94 clients conducted in 2008, Howieson (2011) found that Australian family lawyers belong to a cohesive legal culture and take a predominately constructive (a balance of conciliatory and adversarial) approach to practice; in general and in terms of fairness and satisfaction, family law clients prefer the constructive family lawyer to the purely adversarial type of family lawyer (Howieson 2011: 87).

The researcher explains that the ‘conciliatory’ approach was characterised by the lawyer emphasising the importance of protecting the legal rights of the client. The literature seemed to suggest that a focus on legal rights would be characteristic of the adversarial approach, while the conciliatory approach would entail

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Lawyers and Mediators more of a focus on interests. However, the results showed that the traditional notion of a lawyer emphasising protection of his or her client’s legal rights was an essential part of the conciliatory client-centred lawyer’s approach. A conjecture here is that the clientcentred lawyer protects legal rights while the adversarial lawyer aims to enforce them (Howieson 2011: 80).

Not only was it important that the lawyer should be seen to protect the client’s interest, but also that the procedures were fair. Further, the research shows that parties are more likely to be satisfied with the outcome of a dispute resolution procedure (distributive justice), more willing to accept the outcome, and more willing to use co-operative behaviours regardless of whether the outcome was in their favour or not, if it was generated by a fair procedure. Put simply, the fairness of procedures can enhance party satisfaction, perceptions of overall justice, and co-operative behaviours regardless of the outcome of the case (Howieson 2011: 84).

These findings provide empirical support, in the family law context, of what has long been known: that people’s perceptions of legal legitimacy and of justice depend as much on the fairness of the procedures by which an outcome is reached as on the nature of the outcome itself (Tyler 2006), and of Amartya Sen’s assertion5 that both the outcome and the process by which it is reached are essential components in the justice of the ‘comprehensive’ outcome. 

II.  Development of Mediation A.  England and Wales The report of the Finer Committee in 1974 (Finer Committee 1974) marked a decisive change in emphasis from a policy that sought reconciliation in the sense of bringing the parties together again, to conciliation, in the sense of assisting in settling the terms of their separation. The Finer Committee did not invent conciliation. The possibility of conciliation was recognised by the Denning Committee in 1947 when it argued that the law of collusion should not be understood as forbidding discussion about post-divorce arrangements, but only as prohibiting the concoction of fabricated evidence to satisfy the fault requirements of the divorce law (Denning Committee 1947: para 29 (xi)). In spite of this reassurance, practitioners remained very cautious about discussing post-divorce arrangements before the divorce was granted. This is not surprising because a finding of collusion could lead to the automatic dismissal of a petition. In 1963 the position eased. Courts were allowed, at their discretion, to grant divorce despite the presence of ‘collusive’ agreements,6 and practitioners began to submit agreed settlements to courts in   See ch 2, section I.   Matrimonial Causes Act 1963.

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advance of applying for the divorce so they could receive the judge’s approval. The costs of such an elaborate procedure were of course considerable. But some judges remained hostile, one remarking (in 1967) that, while he was prepared to give leave to implement such an agreement, this did not mean that he approved of it.7 But in 1971 the removal of collusion as a ground for dismissing a petition under the reformed divorce law, and the introduction of consent after a period of separation as one ground for divorce, brought all that to an end. A Practice Direction from the President of the Family Division in 1971 cited the chance of reaching agreement as a possible reason for adjourning court proceedings, and the possibility of orders being made by consent was referred to in a Practice Direction the following year.8 In this climate, mediation could flourish. It also chimed with the emergence during the 1960s and 1970s of an inclination to favour individual empowerment and fulfilment: the same forces which liberalised the law on homosexuality (Sexual Offences Act 1967) and the law of divorce itself (Divorce Reform Act 1969) (Manchester and Whetton 1974). These ideas influenced the marriage guidance movement too, and this gradually shifted its focus from seeking to bring about reconciliation between disputing parties to assisting in conciliation (mediation) (Lewis et al 1992). The Finer Committee sharply distinguished reconciliation, a process designed to encourage the parties to continue or resume their married life, from conciliation, a process designed to assist them to reach agreed solutions for post-divorce arrangements, and this the Finer Committee enthusiastically endorsed (Dingwall and Eekelaar 1988: 11–17). During the 1980s, too, there was a large increase in the extent to which court welfare officers, who were supposed to report to courts on the welfare of children involved in divorces, were becoming involved in conciliation, although, as Adrian James (1988) points out, there was no settled idea as to quite what that meant. It could mean anything from trying to calm down a situation to preparing a report that included advice or assistance to the parties in their negotiations or trying to give the parties greater control over the eventual recommendation. The Conservative government of the 1990s sought to promote mediation in its proposed changes to the law of divorce enacted (though never implemented) in the Family Law Act 1996. The centrality of mediation in the intentions of its designers appears in the title both of the 1993 Consultation Paper (Cm 2424, 1993) and the eventual 1995 White Paper, which set out the scheme: Looking to the Future: Mediation and the Ground for Divorce (Cm 2799, 1995). Although mediation was not to be directly compelled, anyone seeking divorce (or both parties, if they sought it jointly) would be compelled to attend an ‘information meeting’ at which the virtues of mediation would be extolled (See Eekelaar et al 2000: 3; Reece 2003). The government, however, overreached itself in also attempting to revive the goal of reconciliation through the information meetings. Pilot projects run before implementation of the scheme demonstrated the unreality of these   Gosling v Gosling [1967] 2 All ER 510 (Willmer LJ).   For a full discussion see Eekelaar (1994a).

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hopes. As regards marriage-saving, people almost always only attended the meetings without their partner; only 13 per cent took up the offer to see a marriage counsellor, and half of those did so to seek help to end the marriage, not save it. As regards mediation, the meetings motivated people to want to see lawyers rather than mediators: 30 per cent said the meeting had decided them to see a lawyer (two-thirds had already done so). Only 7 per cent had been to a mediator at the time of the follow-up interview (Lord Chancellor’s Department 1999). The New Labour government elected in 1997 abandoned the scheme. But official hopes in mediation continued. Section 29 of the 1996 Act required anyone seeking public funding in a family matter (not only those involving children) to meet a mediator in order to encourage the use of mediation, though it was not compulsory. This requirement survived the collapse of the proposal concerning divorce. The working of section 29 was evaluated in 2000 (Bevan and Davis 2000; Davis 2001). It was found that only about one in every three or four intake interviews led to mediation. Although parties were generally quite positive about the experience, this did not result in high settlement rates. People who used solicitors were even more positive, so the result was that mediation did not reduce costs. Dingwall (2010: 109), one of the evaluation team, explains: The report concluded: – Recent government support for family mediation reflects professional enthusiasm, with little regard to the very low client base. This has come about because the ‘story’ of mediation – its association with reasonableness and compromise – is appealing, and secondly because government has accepted the mediators’ argument that spiralling legal costs can be cut through diverting cases to mediation In practice, mediation tended, if anything, to increase costs because so many referrals failed and it simply became an extra step in the legal process.

Later, the large data set of records for publicly funded cases was examined to compare the extent to which people funded for mediation subsequently sought repeat funding compared to those who had received funding for legal representation (Quartermain 2011). It was found that 66 per cent of mediations apparently resulted in agreement compared to 40 per cent of cases with funded legal representation (a further 20 per cent of those were concluded by court decision) (Quartermain 2011: 36). However, funding for ‘legal representation’ in this context refers to cases where court proceedings were being prepared or actually taken, and not to ‘initial’ legal advice, which could also have led to settlement. In addition, as the Bevan and Davis study showed, only a minority of referrals to mediation are followed by actual mediation so, as the Quartermain (2011: iii) points out: It is important to note that legal aid recipients who choose mediation may differ from those who choose legal representation in terms of the complexity of the case, the issues in dispute, their attitudes towards dispute resolution and their relations with the other party. The findings cannot therefore be used to assess the effectiveness of mediation versus legal representation.



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As noted earlier,9 court statistics show that about three-quarters of all decisions in ‘ancillary relief’ matters are made on the basis of agreement between the parties. These of course include all cases, not just legally aided ones, and probably many that would not be appropriate for mediation. The initial results of the research by Barlow and Hunter (2012) referred to earlier,10 which was not confined to publicly funded cases, found that 41 per cent of people who used mediation were satisfied with the process, compared to 64 per cent who were satisfied with lawyers; and that 39 per cent were dissatisfied with mediation compared to 21 per cent who were dissatisfied with solicitor negotiation. In 2011, a Practice Direction was issued by the President of the Family Division that expects all applicants in most family proceedings, whether involving children or not, to have contacted a mediator before making an application and to have attended an ‘information meeting about family mediation and other forms of alternative dispute resolution’.11 This practice, referred to as MIAMs (Mediation Information and Assessment Meetings) has had only a modest effect, showing a 12 per cent increase of referrals of publicly funded cases to mediation during its first year,12 but was strongly endorsed by the Family Justice Review as part of proposed Dispute Resolution Services (Review Panel 2011: paras 4.80–4.85), and the Coalition government proposed to legislate to ‘reinforce the expectation’ that parties should attend a MIAM (Ministry of Justice and Department for Education 2012: 72).13

B.  The United States In the United States, mediation, in the sense used here, became significant during the 1970s, particularly after its promotion in Atlanta, Georgia, by OJ Coogler in 1974, the same year the Finer Report was published in England. This relatively late development of mediation in the divorce context has been attributed to the same forces that held it back in England: the domination, until then, of fault-based divorce, which Brown (1982: 4) justly described as ‘forcing parties to become adversaries’. But mediation’s development seems to have been faster in the United States, perhaps because of the widespread provision of counselling services already available in some family courts, with which it seems to have become to some degree entangled. The position in 1982 was described as follows (Brown 1982: 17–18):

  See ch 1, section II.E.   See section I.A of this chapter. 11   Practice Direction 3A – Pre-application Protocol for Mediation Information and Assessment. See www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/family/practice_directions/ pd_part_03a.htm#IDA0BTAC. 12   HC Deb 24 May 2012, col 166WH: Mr Djanogly: www.publications.parliament.uk/pa/cm201213/ cmhansrd/cm120524/halltext/120524h0001.htm. 13   See Children and Families Bill 2013. 9

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Lawyers and Mediators In addition to the Los Angeles Court, a number of other court-connected custodycounseling programs have been reported during the last several years, some of which used a mediational approach, some a counseling approach, and still others a combination of mediation and counseling; all of these court programs had the same goal of helping divorcing parents themselves resolve their own custody/visitation disputes. These programs include: 1) custody counseling and mediation (Phoenix, Arizona); 2) mediational custody counseling (Minneapolis, Minnesota); 3) conciliation custody counseling (San Jose, California); 4) pre-trial custody mediation counseling (New Bedford, Massachusetts); 5) family self-determination custody counseling (Madison, Wisconsin); 6) custody conflict-resolution counseling (Bay City, Michigan); 7) custody mediation counseling (Hartford, Connecticut); 8) custody mediation (San Francisco, California); 9) custody mediation (Arlington, Virginia), and 10) child advocacy custody counseling (Tucson, Arizona).

By 2005, some 92 per cent of family court agencies offered mediation, 69 per cent offered child custody evaluation and 48 per cent offered parental education. (Salem 2009: 373). The enthusiasm of its protagonists has been remarkable: ‘mediation appears to be more of an ideologically driven movement than most dispute resolution processes, resulting in a zealous commitment to the process and the field by its proponents’ (Salem 2009: 374). In 1982, Brown (1982: 11) described the role of the ‘divorce’ mediator as follows: the divorce mediator functions in varying degrees in a number of roles: convener, initiator, intervener, intermediary, go-between, observer, reality checker, gatherer, questioner, conflict manager, discoverer, interpreter, reflecter, clarifier, catalyst, translator, information supplier, conductor, synthesizer, consultant, encourager, compromise instigator, persuader, balancer, equalizer, synchronizer, negotiating agent, harmonizer, facilitator, cooperation teacher, conciliator, and integrator. All of these functions are directed to the goal of helping the divorcing couple accept the fact that it is their dispute, that it is their responsibility to resolve their differences, that they can function as co-operators rather than adversaries in negotiating on their own terms in order to arrive at their own settlement and reach their own agreement and establish a basis for post-dissolution communication for the best interest of their children.

The same objective is stated in a major English text on mediation in 2008: the decisions in mediation can be made by those who have to live with them, rather than by some third party, however wise and well meaning . . . The retention of control over their own affairs can also assist the parties in their recovery of self-respect and dignity (Roberts 2008: 34).

By 2004 numerous models of mediation were identified in the United States (Folberg et al 2004). Some of these combined mediation with other functions, such as evaluation. But the underlying belief is that, by giving the parties the opportunity, and power, under third-party guidance, to fashion the outcome according to their own desires, the relationship between them can be transformed.



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C.  Australia, New Zealand and British Columbia Perhaps the most thoroughgoing attempt to divert family dispute resolution away from courts, and even from lawyers, has occurred in Australia where the Family Law Amendment (Shared Parental Responsibility) Act 2006 expressed a policy that not only sought to promote ‘shared parenting’,14 but to bring it about if possible without court intervention. To that end courts are not permitted to hear applications for orders relating to children unless the applicant produces a certificate from a ‘Family Dispute Resolution’ (FDR) practitioner, which can state whether the applicant made a genuine effort to resolve the issue through FDR, or whether the matter was inappropriate for such resolution. FDR practitioners, who are not lawyers, are mostly employed by Family Relationship Centres, of which there were 65 in 2009. These are non-governmental organisations selected on a tender basis, but financed from public funds. They provide advice, counselling and mediation. Many services are free, or charged on a sliding scale depending on income. There are complex regulations indicating when resolution through FDR would be inappropriate, including the presence or risk of child abuse and family violence and an assessment that a party lacks capacity (physical or otherwise) to participate. FDR is also sensibly exempted where the parties are applying for a consent order, and are therefore already in agreement (Fehlberg and Behrens 2008: 333–41). An evaluation of the process by the Australian Institute of Family Studies showed that a high degree (some 70 per cent) of persons using FDR thought it operated fairly, and revealed a 22 per cent decrease in applications to courts in matters related to children or children together with property in the three years following the introduction of the legislation. There was, however, a modest increase in applications for property only (Kaspiew et al 2009: 305–07). The causes, and benefits, if any, of this apparent shift in quantity from outcomefocused to behaviour-focused processes in child-related cases are hard to assess. One reason is that parents who reported that they had experienced physical violence from their partner were a little more likely (65%) to have either “contacted or used counselling, mediation or FDR” . . . than those who reported having experienced emotional abuse alone (60%) and those who did not report experiencing violence (33%). (Kaspiew et al 2009: 100).

It therefore appears that the experience of violence does not necessarily inhibit resort to FDR, even though this might risk an unequal ‘negotiating’ position. Although some of those cases will be screened out, many will not be, and most staff of the centres thought that about a quarter of the cases they dealt with should not have been there because of family violence (Kaspiew et al 2009: 105–06). In addition, after the reforms, ‘about three-quarters of those who nominated counselling,   This is discussed further in ch 8, sections IV and V.

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mediation or FDR as their main pathway to resolution [of parenting arrangements] also made use of lawyers’ (Kaspiew et al 2009: 67) and 65 per cent of people who used FDR also used a lawyer (Kaspiew et al 2009: 109). It is arguable that the combination of legal assistance and FDR could be rather effective in child-related cases in bringing about agreements which do not threaten the interests of the parties or the children. In 2009 the earlier strategy of keeping lawyers out of Family Relationship Centres was reversed and a Legal Assistance Partnership Programme to ensure that clients of Family Relationship Centres receive accurate legal advice was introduced. It seems that the changes have encouraged collaboration between lawyers and mediators (Rhoades 2010). The New Zealand Family Court Review Consultation suggested that New Zealand might follow the Australian model and make court application conditional on certification from a mediator that parties made a genuine effort to resolve their dispute (New Zealand Ministry of Justice 2011: 42). British Columbia, however, has enacted only that ‘family dispute resolution professionals’ should discuss alternative dispute resolution prior to application, in the light of a prior assessment as to the presence of violence (Ministry of Attorney-General et al 2010: 13; Family Law Act 2011, s 8 (BC), coming into effect in March 2013.) This is closer to the English approach, which requires only the communication of information about mediation, though it should come from a mediator.

III.  Criticisms of Mediation The assumption that in mediation a third party can assist the parties to achieve an agreement which is in some sense ‘their own’ agreement, is questionable. After all, any agreement between disputing parties is bound to involve either one or both not obtaining all that they want. In that sense, the agreement will not be a reflection of each of ‘their’ initial wishes. Can it however be said that the compromise outcome nevertheless reflects the modified wishes of each party, and is therefore ‘their’ agreement? The answer of course depends on the freedom each had in reformulating their position and accepting the new outcome. This will partly reflect the dynamics between the parties, and partly the role of the mediator. As regards the parties, it has long been suggested that ‘there is a potential for the agreements negotiated through family mediation processes simply to reflect the power relationship between the mediating parties’ (Batagol and Brown 2011: 182). Batagol and Brown’s close observations of eight cases in Australia suggested that, although the legal framework played some role in the dynamics of the mediations, other factors were often more important. These included differential willingness to pursue legal entitlements if the other party failed to agree; the desire to protect children from further conflict; uncertainty about what the law was, and emotional and moral considerations (Batagol and Brown: 258–59). Since such



Criticisms of Mediation

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factors affected the parties in different ways, there was room for strategic behaviour and exploitation of power imbalances between them. Reference has already been made15 to Eva Ryrstedt’s (2012) observations that parties to mediation in Sweden are usually so intent on finding a settlement that they lose focus on the interests of the children. These observations echo those made in relation to the Scottish practice of registering ‘Minutes of Agreement’ in Books of Council and Session or Sheriff Court Books. Such Minutes can cover any matter related to a divorce, and when so registered, can be enforced by a summary process (‘diligence’) without going to court. While their terms may be altered by agreement, they cannot otherwise easily be changed (unless the issue relates to children). They appear to be used in about one-third of divorce cases (Edwards and Griffiths 2006: 521–30). Although the Minutes are unlikely often to be the outcome of mediation, they do purport to record ‘agreement’, usually made with the assistance of lawyers, though Wasoff (2005: 244) notes that in only 55 per cent of a sample of 609 of these agreements made in 1992 was it recorded that both parties received independent legal advice. Follow-up interviews of 30 individuals indicated that most of them had made the agreement in order to avoid conflict and exit the relationship quickly, but ‘in nearly all cases parties felt they had paid a high price’ for this and had been pressured into making compromises they felt at the time were unacceptable. Wasoff concludes that these are better described as ‘settlements’ than true ‘agreements’. As regards mediators, in a far-sighted paper in 1988, Robert Dingwall reported that an analysis of transcriptions from tapes of mediation sessions showed how mediators can influence the direction of the discussion by what he later called ‘selective facilitation’, a mode of framing the issues, and ‘shepherding’ the discussion, so that some outcomes became more likely than others (Dingwall 1988; see also Dingwall and Greatbatch 1991). Mediators might do this to ‘shield’ one party against a more powerful partner, but could also inhibit less forceful parties from raising, or pursuing, issues that might jeopardise agreement. Thus Greatbatch and Dingwall (1999) later showed how mediators marginalised issues of domestic violence. Using the same methods some 20 years later, Trinder et al (2009) demonstrated the same process at work, showing how mediators could shut down apparent attempts by women to raise concerns about ill-treatment by their partner. The importance of this research lies not so much in showing the kinds of issues which may receive more, or less, attention by mediators than one or other of the parties may wish, but in demonstrating that the mediation process is not as neutral as might be supposed. This is recognised by mediators. Roberts (2008: 145, 171–72), for example, says that, while mediators may not be able to be neutral (for they will have views, values and interests), they should at least be impartial, and certainly should not be manipulative. But it is difficult to separate impartiality and neutrality in this way, especially in a process that is not subject to scrutiny. These concerns have recently been restated in the United States and Canada where   See ch 2, section III.

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Gerami (2009) has questioned the assumption that mediators are, or can be, impartial and neutral. He accepts that this can also be true with regard to judges, but notes that: In the context of judging, though, the formal and public setting, judicial forms of distancing, and the existence of rules of procedure to check overt signs of prejudice afford some protection against bias. In contrast, in the context of mediation, thanks to the intimate relationship of the mediator with the parties, the informality and flexibility of the process, and the lack of a formal public record, there is a great potential that bias will influence the outcome. (Gerami 2009: 437).

To this might be added that the absence, or relative weakness, of a ‘normative framework’, such as is provided by the law, governing the outcome to which the mediation might lead compared to that in which a judge, or even lawyers, will operate could make such bias more likely. Dingwall did not conclude that mediation was necessarily to be condemned because mediators followed, and tried to promote, certain values. But he argued that these values should be made transparent, and not concealed beneath the rhetoric of individual empowerment. Indeed, some family mediators are prepared to accept that they try to influence the discussion towards certain outcomes and away from others. They may try to shield the weaker party against domination by the stronger, or influence them towards an outcome which is better (in the mediator’s view) for the children. This is particularly true where mediation merges into ‘problem-solving’ (Kressel et al 1994), and even more so where it is seen as a potentially ongoing therapeutic process (Mayer 2009). In Australia, under the 2006 family law reforms FDR practitioners are not neutral with regard to outcomes for children. Rather, they are required to actively support the best interests of the child . . . (they) also attempt to actively represent children, either directly by working with child consultants (childinclusive practice) or indirectly through child-focused practice (Kaspiew et al 2009: 95; see also Moloney and McIntosh 2004).

This proactivity however opens the door for government to use the process to promote certain favoured outcomes, in this case, ‘shared parenting’, in a way which may be inconsistent with the independence of the professionals concerned and the autonomy of the parties.16 There are various other goals which mediation seeks to realise. One of the most frequently stated is that it avoids the ‘adversariality’ of the legal process, and accordingly is more likely to produce consensual agreements. The value of this goal is of course dependent on the extent to which the descriptions given of the legal process are accurate. We have seen that in general they are not. Claims about success in achieving settlement also need to be set against evidence of outcomes reached without mediation. Simple rates of cases reaching agreement without a court appearance are unhelpful because it cannot be known how many of those   See ch 9, section IV.B.

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cases would have been settled without court appearance had there been no mediation. For example, a survey of nine studies in the United States showed that settlements rates of a variety of mediation processes ranged between 50 per cent and 90 per cent (Kelly 2004: 28). A major British study published in 1994 indicated that ‘comprehensive’ mediation (that is, where it deals with all issues, and not simply, for example, disputes concerning children) achieved settlement in 39 per cent of cases, and in 19 per cent of cases in child-related matters (Relate Centre for Family Studies 1994). But how do we know whether settlement might have been achieved in some, or even all, of those cases without mediation? A survey of 300 ancillary relief orders in England and Wales showed only 4.6 per cent of such orders being subject to actual adjudication (Davis et al 1999). Such figures show that, in England and Wales at any rate, resolving family disputes by judicial determination is very rare. If mediation is judged solely by its ability to steer people away from judicial determinations (adjudication), it is hard to see it as having anything to offer. It would need to show, not that people are more likely to agree without adjudication, but that the process brings other benefits: for example, better outcomes for children, more long-lasting agreements or better interpersonal relations between the disputing parties. We have already referred to the reviews by Trinder and colleagues (Trinder et al 2006; Trinder and Kellett 2007) of in-court conciliation that, two years after the intervention, a majority of agreements had required further intervention, that about 60 per cent of the initial agreements had been broken or dropped and that there was no improvement in the measures of well-being of the children.

IV.  Problems with Research Evidence So the proper comparison should be between trying to reach agreement through mediation and other attempts at reaching agreement, especially through negotiation using lawyers. Making such a comparison throws up many intriguing questions. The first is whether there is indeed any reason to believe that an agreement reached through negotiation is any less, or any more, an expression of the parties’ will than one reached through mediation. For reasons stated earlier, the idea that an agreement can in some sense express the true wishes of each party is unrealistic. But a lawyer can only act according to instructions, and, in theory at least, can properly only accept an agreement with which the client approves. So there might be some reason to believe that agreements negotiated through lawyers are closer to the desires of each party than one reached after mediation because lawyers are bound to protect the interests of their client as far as possible, and if they do this successfully, the compromise each makes will be the minimum necessary to reach agreement. This may not be true for mediated agreements. However, in order to compare outcomes in mediated and unmediated cases it is necessary that some cases are and some are not assigned to mediation at random,

42

Lawyers and Mediators

because otherwise the mediated sample will be biased by selection effects, namely, that differences in outcomes reflect the nature of people who use mediation rather than the process itself. But it is obviously difficult to do that. Beck and Sales observed, in the American context, that it was difficult to pass judgement about the effects of mediation in the absence of good evidence about how the alternative model, negotiation with lawyers, was working. They wrote (Beck and Sales 2000: 1044): mediation programs were created to solve a myriad of problems associated with the litigation process. Interestingly, other than statistics concerning child support enforcement and the number of cases that reach trial, there is a glaring lack of comparison data that documents these problems. How many parents abuse the legal system to harass their co-parent? In how many cases do attorneys find the clients are unrealistic in their demands? How many parents are unable to contain their emotions in court hearings? In how many cases do lawyers create significant acrimony between the spouses and how do lawyers do this? There are no investigations of the work of lawyers or courts where random samples of lawyers and client sessions are video- or audio-taped so that the true conduct of lawyers can be evaluated, coded, analyzed, and then generalized to the population of all lawyers. In addition, there are no investigations of the work of lawyers in negotiating divorce settlements, which come close to the scope or level of detail found in mediation studies The studies of lawyer negotiations that do exist are qualitative and use non-representative samples of lawyers so that it is unclear if the findings of these studies would generalize to the greater population of all divorce lawyers.

One project in the United States which used randomised allocation showed higher settlements by couples having mediation and also that, as many as 12 years after the divorce, there was greater father-child contact than with couples not having mediation (Emery et al 2005). There thus appeared to be significant advantages to the mediation process. However, the mediation in that study comprised important therapeutic elements, involved two mediators for each session (averaging five hours in all) with follow-up, and concentrated on high conflict cases. The fact that mediation takes many forms, and can cover many types of case, makes generalised comparisons and evaluations more difficult. As Beck and Sales (2000: 1044) observed: it is very difficult to assess the success of mediation given the limitations in both methodology and research designs found in much of the published literature. Common problems in nearly all studies include small sample sizes, non-random samples and non-random assignment to dispute resolution methods, non-equal comparison groups or more often no comparison groups, confounding of dispute resolution process with issues resolved by that process, few actual sessions recorded, and no detailed, step-bystep manuals of the different models of mediation used. Thus replication of any study is nearly impossible. Common problems that occur across studies that make comparisons between the studies extremely difficult include differences in the models of mediation used, the issues to be mediated, the physical setting where mediation occurs (i.e., courtconnected or private setting), the clients’ socio-economic status (SES), the clients’ level of cooperativeness before entering dispute resolution process, the number of sessions offered, the outcome measures, and when the data was collected in relation to the final divorce decree being issued by the court.



Collaboration and Co-operation

43

Emily Douglas (2006) makes the same point. In recent years, the initial enthusiasm for mediation has been tempered by realism. In particular, concern has been expressed that the widespread use of compulsory mediation for all, or most, of those wishing to take a dispute to court could actually have adverse consequences. In the American context, experienced commentators have observed: As family court service agencies experience increasing caseloads and static or diminishing staff time, providing confidential mediation services that offer multiple sessions and encourage self-determination to every family has become more challenging in a courtconnected context. Not only are valuable staff time and resources used, but as families move through the system they spend an increasing amount of their time . . . their attorney’s time . . . and their money, while often becoming increasingly polarized through repeated failed attempts to resolve their disputes. (Salem et al 2007: 750).

V.  Collaboration and Co-operation The evidence considered above showed an apparent convergence between mediation processes and legal negotiation around the issue of ‘settlement’. The idea that legal negotiation is directed primarily towards adjudication must be dismissed. Indeed, both processes would regard an adjudicated outcome as a failure. But failures will occur in each process, and any family justice system will need to accept the necessity for adjudication in some form in such cases. Since both processes share a common objective, but differ in the means by which they seek it, the most promising approach seems to be to consider them not as in opposition to each other, but as supplemental to each other. One US practitioner, underlining the changing nature of family law practice in that country, has observed: ‘Today, mediation has become an integral part of family law practice. It is no longer a choice between mediation or lawyers – it is mediation and lawyers’ (Mosten 2009–10: 502). We have emphasised earlier17 the importance of procedural fairness. The Australian research referred to earlier also revealed the emphasis that parties placed on procedural fairness. Jill Howieson (2011: 85) found that clients’ perceptions of fairness were influenced by the nature of the processes followed, and that they played an important part in what she calls ‘constructive’ lawyering: The results show that the particular lawyering approach that the lawyers took was a powerful predictor of procedural justice and that, in general, the clients preferred the conciliatory lawyering approach to the adversarial approach in terms of fairness and satisfaction. The results also showed that of the four behavioural approaches, the clientcentred approach was the strongest predictor of procedural justice, with the client-­ centred and interest-based approaches strong predictors of the perceived fairness of the advice. Further, the results showed that when the lawyers were purely adversarial, most   See above section I.B.

17

44

Lawyers and Mediators clients (with the exception of the high-conflict, adjusted clients) saw the lawyering process as potentially procedurally and distributively unfair, and unsatisfying. However, when the lawyers used the adversarial behaviours in balance with conciliatory behaviours, namely used constructive behaviours, the clients were likely to view the process and the outcome as fair and satisfying.

Thus the fairness of the comprehensive outcome could be dependent on the perceived fairness of the professionals. This includes having due regard to a client’s interests, though not if it leads to an exclusively adversarial attitude. This could include ensuring that a client receives the appropriate forms of non-legal service at the appropriate time, which may be before entering the court system (if that is to occur at all). Of course some individuals may have sought out such services independently. But if they have not, and they engage the family justice system by approaching the legal profession, the lawyers should have a responsibility to involve such other agencies or professionals as are appropriate to the case. These services could include relationship counselling, parental education, anger management, child psychiatric services and mediation. Apart from mediation, these services are not part of the family justice system as we perceive it. However, they could be important elements in the management and resolution of family conflicts. Their availability is primarily a matter for health and social services. We referred above to the growing possibilities of collaboration between mediators and lawyers in Australia. Helen Rhoades (2010: 189) remarks that: a number of mediation services had managed to develop highly successful working relationships with lawyers. One such service is that run by Relationships Australia Victoria (RAV) . . . which had built positive relationships with local solicitors through the provision of joint professional development forums. Although RAV’s mediators usually have little direct contact with lawyers on individual cases, these monthly meetings had allowed the two groups to become familiar with each other’s work practices and provided practitioners with a space to share ‘war stories’ about ‘difficult’ clients and shifting policy expectations in family law.

Rhoades (2010: 192) concluded that, while (b)ehind the recent ‘mandatory mediation’ reforms in Australia was a desire by the previous Australian government to reduce the influence of the legal profession in settling post-separation disputes over children, and to replace legal advisers with socialscience trained dispute resolution practitioners who have ‘an in-depth understanding of child development’ . . . the reality of this policy shift has been that while applications for court hearings have declined, the need for parents to have access to legal services has not. Instead of the ascendancy of mediation programs, separated parents increasingly find themselves using the services of a number of different professionals, increasing the need for cross-professional collaboration. Our empirical research suggests that key to improved relationships between lawyers and mediators are opportunities for personal contact, including working together as a multi-disciplinary team. This reality has now been recognised by the present Australian government.

The development of cross-professional collaboration would create opportunities for exploring new techniques for achieving settlement. One such is collaborative



Collaboration and Co-operation

45

law, developed in the 1990s in the United States. Lande (2002/03: 1318) explains the practice as follows: In Collaborative Law (CL), the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach in negotiation . . . CL lawyers and parties negotiate primarily in ‘four-way’ meetings in which all are expected to participate actively. Lawyers are committed to ‘keep the process honest, respectful, and productive on both sides.’ The parties are expected to be respectful, provide full disclosure of all relevant information, and address each other’s legitimate needs. Under CL theory, parties have ‘shadow’ feelings (such as anger, fear, and grief), which are ‘expected and accepted, but not permitted to direct the dispute-resolution process.’ CL theory provides that each lawyer is responsible for moving parties away from artificial bargaining positions to focus on their real needs and interests to seek ‘win-win’ solutions. Some theor­ ists suggest that the CL agreement effectively ‘amounts to a “durable power of attorney,” directing the lawyers to take instructions from the client’s higher-functioning self, and to politely disregard the instructions that may emerge from time to time during the divorce process when a less high-functioning self takes charge of the client.’ If a lawyer determines that his or her client is participating in bad faith, the lawyer must withdraw. As a result, the lawyer’s continued participation effectively vouches for the client’s good faith. Under CL theory, CL creates a metaphorical ‘container’ around the lawyers and clients to help focus on negotiation. CL creates this container through a mutual withdrawal agreement that disqualifies both lawyers from continuing to represent their clients if either party chooses to discontinue with CL and proceed in litigation. This agreement is intended to align parties’ and lawyers’ incentives to promote settlement. Virtually all CL practitioners believe that this agreement is the ‘irreducible minimum condition’ for calling a practice collaborative law.

While collaborative law practice originated from a perception that lawyers needed to be strongly inhibited from litigiousness, which, as explained earlier, no longer holds, some practices, such as the commitment to disclosure, and four-way meetings, have the potential to promote settlement. The disqualification agreement appears to be perceived by many collaborative lawyers almost as an article of religious faith. Its deterrence against resort to litigation is understandable in a strongly litigious culture. However, as shown here, and developed throughout this book, family practice, at least in England and Wales, cannot be characterised in this way. Furthermore, a disqualification agreement could have serious dis­ advantages. The delays and extra costs involved in instructing new lawyers should agreement fail could exert unreasonable pressure on either or both parties to accept unfavourable settlement terms, especially as, if one party withdraws, the other is also bound to discharge his or her lawyers. The disqualification agreement also provides a strong incentive for the lawyers to bring pressure on their clients to accept an outcome they may dislike, or at least to accede more readily to outcomes that favour the stronger party. Nevertheless, practitioners of collaborative law have commented on its ability to provide clients with more opportunities to express their views, resulting in better information at hand for the lawyers, allowing perhaps more creative solutions to be found (Wright 2011). But this could be achieved without the disqualification

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Lawyers and Mediators

agreement. An emerging alternative, which some have termed ‘co-operative law’, requires the lawyers to commit themselves to seek settlement using similar processes as in collaborative law, but without the disqualification agreement. This is similar to civil mediation in non-family cases, in which parties ‘attend the meeting with whoever they choose, including their solicitors, maybe counsel, and any experts they feel they may require’ which has been commended for family disputes, especially those involving money or property (Butterworth and Smyth 2010). How, therefore, would interactions between lawyers using ‘co-operative’ lawyering differ from those presently prevailing, even in a ‘settlement culture’? Some idea might be obtained from the following description in a qualitative Canadian study of collaborative law. The author is comparing those aspects of collaborative law practice excluding the disqualification agreement with usual legal methods (Macfarlane 2005: 29): Research on lawyer-to-lawyer negotiations has identified a number of consistent characteristics of such negotiations, such as the following: arm’s length communication (either by fax, letter or phone, as opposed to face-to-face); exclusion of clients from direct participation; a triggering legal event, such as a pre-trial or settlement conference; and a highly positional and ‘value-claiming’ approach. Another important factor is the historical relationship between counsel, which, at its worst, may drive highly competitive personal relationships, resulting in protracted and inefficient negotiations. ... There appears to be widespread agreement that CFL reduces the posturing and gamesmanship of traditional lawyer-to-lawyer negotiation, including highly inflated and lowball opening proposals. As one lawyer said, ‘One of the big differences is the conscious avoidance of . . . adopting the extremes.’ (Case 3, lawyer 2, entry interview, unit 46) The explanations for this difference are partly ideological. The CFL lawyers want this new process to succeed and therefore they must ‘walk the talk’ in actual negotiations. The explanations are also partly structural. Whereas most lawyer-to-lawyer negotiations begin with a ritual of unrealistic opening offers, the first one to three four-ways in CFL are generally occupied with reviewing the commitments of the participation agreement, followed by a process of information gathering. Usually no proposals are tabled until these stages are completed, often to the frustration of the clients. After these initial meetings, there is a much clearer sense of what each party wants and expects than when opening shots are fired. There is also awareness among CFL lawyers that they are responsible for modelling cooperative behaviour to their clients. Unlike conventional lawyer-tolawyer negotiations (but similar to client-inclusive mediation), clients are observing counsel’s negotiating behaviour first hand, minute to minute in a CFL four-way.

Macfarlane is appreciative of the drawbacks of the disqualification agreement, and floats the idea that all that may be necessary is for an initial agreement over a time period in which neither party would ‘litigate’, without disqualification of the lawyers should that event occur (Macfarlane 2005: 39). Another variant, which is consistent with collaborative or co-operative practice, is for the parties to agree to use a ‘third-party neutral’ lawyer, who might include retired judges (or some other professional) who could provide a non-binding opinion on the likely outcome of a



New Initiatives

47

dispute should it go to adjudication. Various combinations might be possible, including forms of ‘lawyer-supported mediation’ where lawyers for each party work closely with mediators in appropriate cases.

VI.  New Initiatives This chapter has described what appear to be the characteristic features of two important processes within the family justice system: lawyer-led negotiation and mediation, and the interrelationship between them. Finding the right balance between them is difficult, especially as governments can be easily influenced by what they believe are the lower costs of mediation. Unfortunately, the refusal of successive United Kingdom governments to acknowledge the part that lawyers play in negotiating solutions to family disputes, described earlier, has led it to neglect exploring ways in which these interrelationships can be developed. Instead, it adopted a strategy whereby public funding for legal advice in private law family matters is contingent on the provision of mediation (Ministry of Justice 2011a: Annex A, para 54). If a client is eligible, legal aid would contribute towards the cost of the mediation and legal advice both before and after the mediation. Of course there would be interaction between legal services and mediation in such circumstances, but there is no recognition that resolution of an issue through lawyers alone, without mediation, may frequently be possible or desirable. Could legal aid payments be triggered if a case is sent for mediation even if the parties can agree without mediation? The government took no steps to explore whether collaborative or co-operative lawyering could be promoted so that the best mix of mediation and lawyer-negotiation could be adopted at an early stage in disputes. The Family Justice Review, in its Final Report, was more willing to acknowledge the role of lawyers, saying: ‘Lawyers play an important part in ensuring the speedy resolution of cases, in supporting families to negotiate settlements and narrowing issues where matters are contested’ (Review Panel 2011: para 2.223). Yet, when the Review systematically sets out its vision of a ‘coherent process for dispute resolution’, it specifies three main ‘stages’: an ‘information hub’ (an online resource and telephone helpline); ‘dispute resolution services’ and the ‘court process’ (Review Panel 2011: para 4.70).18 There is no mention of consultation with lawyers. Of course the Review does not exclude it. The Panel may be imagining circumstances where such negotiation had been tried and failed, but that is unlikely because there would be no need to make use of the ‘information hub’ at that point. Possibly it is contemplating circumstances where the parties are avoiding lawyers entirely, relying for legal advice solely on the information hub. In that event, before someone makes an application to a court, they would need to attend a Mediation and Information Assessment (MIAM) meeting with a   This is discussed further at ch 9, section III.

18

48

Lawyers and Mediators

mediator, who would assess the most appropriate way forward, which could include reference to mediation or ‘collaborative law’ (Review Panel 2011: para 4.81). The Review recognises that ‘parties may also wish to take legal advice alongside mediation or engage lawyers to help them negotiate agreements without the need to go to court’. Given the climate of opinion in government regarding the role of lawyers, the Review might have been reluctant to suggest that seeking legal advice might be a prudent, and desirable step to take at an early stage. Yet, as Mike Stepan (2011), a mediator, has pointed out, such advice can be important in preventing people entering mediation with unrealistic and extravagant claims, which can be damaging to the mediation process. It could also in many cases obviate any need to attend a MIAM or go to court later. However, there is evidence that the professions are themselves developing initiatives where legal and other services, such as mediation, may be accessed through a single provider. These initiatives are directed at different sections of the divorce ‘market’. Some aim to fill the gaps which will emerge when the restrictions on legal aid in family cases come into effect. For example, the Department for Work and Pensions is setting up a Family Support Service web application to direct people to pro bono and quality assured legal information services some of whom also offer advice. One of these is LawWorks, a charity associated to the Law Society which uses lawyers (including some who have been made redundant), mediators and students who are willing to work on a pro bono basis for people who cannot access legal aid but cannot afford to pay for these services.19 Others aim at families on an average income. For example, the Co-operative Society (which is primarily a food retailer) offers free legal advice and guidance to its members, but has received permission to expand this service, creating 3000 jobs, to members of the public at fixed fees.20 The Society became the first consumer brand to be granted alternative business structure status under the Legal Services Act 2011, which makes it possible for providers other than lawyers to provide legal services. The 2011 Act has also made it possible for lawyers to group together in new ways. For example, a firm/enterprise called Riverview Law, based in the north of England, offers ‘sensible pragmatic advice and representation’ in family matters at fixed prices from barrister-led teams. They suggest that their divorce package of services will be useful to those with assets of over £500,000. The service is divided into four parts following current procedures; (1) an initial conference assessing and preparing the case; (2) instructing counsel and holding a conference for a minimum charge of £1,000; (3) preparation for the First Appointment at court, which will cost no less than £7,500, and (4) the mandatory Financial Dispute Resolution procedure (where parties are invited to settle under the guidance of a judge) which will cost no less than £17,500. If this procedure fails to reach agreement and a full contested hearing is needed this will be at a bespoke price. So   See www.lawworks.org.uk/.   See www.co-operative.coop/legalservices/Family-Law/. Also ‘Legal services outperform groceries at the co-op’ Law Society Gazette 29 May 2012: www.lawgazette.co.uk/news/legal-services-outperformgroceries-co-op. 19 20



New Initiatives

49

where assets are at least £500,000 the cost of the package will be competitive at no less than £25,000. These new enterprises include imaginative ways of bringing lawyers and mediators together. One example is ‘Keep it out of court’ which is being developed by a group of lawyers and mediators to offer lawyer-supported mediation in divorce at a moderate fixed price, aiming to reach those who are just above the income limit for legal aid eligibility.21 The array of possible services may be daunting for the individual under stress in need of urgent help. For example, many advertisements on the web for free legal advice are in reality offering brief and simple legal information, while any question to be answered carries a fee, often £50 per question. A different type of service is offered by a new Family Law Arbitration Scheme that was launched by the Institute of Family Law Arbitrators (IFLA) in March 2012. This scheme covers standard family law issues, but not those concerning arrangements for the children. This is likely to be expensive to litigants, and therefore attractive only to those in the higher income brackets who may wish to avoid the potential publicity of court litigation. However, the exercise of powers by privately appointed arbitrators that could have a significant public policy element, such as the fairness of agreements, or their implications for children, needs careful consideration. The Family Support Service initiative of the Department of Work and Pensions referred to earlier22 plans to offer quality control. But the distinction in the legal sector between general information and specific advice, which can be relied on in the way that a doctor’s advice would be respected, is not widely understood. This bewildering array of new forms of service may yield excellent and innovative services to those struggling to find help. It may also be difficult for the individual with language or literacy problems to navigate through the commercial and comparatively unregulated seas of the new integrated services in their search for family justice. We will return to these issues at the conclusion of this book.

 http://keepitoutofcourt.co.uk/what-we-do.   See section VI of this chapter.

21 22

4 Courts: Changing Structures and Functions Looked at historically, the family justice system in England and Wales, if it can be called that, paid scant attention to the state of the relationship between family members. Its concern was primarily to uphold the patriarchal family system. If this had devastating consequences for its members, so be it. In fact, it was little concerned with how the members behaved towards one another within the family, provided that it remained intact under the authority of the husband. Yet once the marriage was consummated, there was little a wife could do to escape from it however painful her relationship with her husband might be. Even a husband who tried to leave his wife might be ordered to return, and imprisoned if he did not. This sanction was not removed until 1884.1 Only in 1891 was it made clear that this could not be circumvented by the stronger spouse (it would inevitably be the husband) forcibly constraining the other.2 During the twentieth century, however, attempts were made to bring the justice system to concern itself with the true state of the relationships between those with whom it was dealing. In describing this development, it is necessary to distinguish the processes of the higher courts from those of the magistrates’ courts.

I.  The Magistracy English law never greatly concerned itself with the family life of the poor majority of the population. It directed its attentions to the property interests of wealthy families, especially those which owned land. But the law did become involved if poor people threatened to become a burden on parish funds. A mass of law grew up around the question of which parish had responsibility for a poor person; in the technical expression, determining where was his or her ‘settlement’. From the late-sixteenth century, poor law authorities could require family members of a poor person they were supporting to contribute to that support. In this way obligations between family members were indirectly enforced. These provisions were   Matrimonial Causes Act 1884. See Cretney (2003: 143–45).   R v Jackson [1891] 1 QB 671. Cretney (2003: 146–47).

1 2

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Changing Structures and Functions

consolidated in the Poor Relief Act 1601, and developed throughout the following two centuries. (Eekelaar and Maclean 1986: 1–2). But this did not initially give individual family members rights against each other. However, in 1878 a wife who had been granted a separation order in a magistrates’ court against a husband who had been convicted of an aggravated assault on her could be awarded maintenance against him in her own right.3 So how might a poor person obtain some help for family troubles? The poor law authorities were unlikely to be very sympathetic. The church could be influential, especially following the emergence of the Methodist movement in the eighteenth century. But at that time people might also consult the justices of the peace. The justices were mostly prosperous laymen or clerics. They might encounter working class people in a number of contexts, mostly in connection with the criminal law. In those days it was a criminal offence to break your employment contract (by not turning up for work, or appearing late). The justices often succeeded in bringing about agreed settlements to disputes, and certainly made findings favourable to employees, though to modern eyes the justice they dispensed looks very severe (Hay 1998). Nevertheless, in urban areas during the nineteenth century their practice of giving informal advice to the troubled poor was carried on by full-time, professional, stipendiary magistrates, and this role became far more significant as large swathes of criminal, and later family, jurisdiction were conferred on magistrates’ courts (Davis 1984). The magistrates were allowed a very wide discretion in carrying out their duties. A newspaper at that time gave this description: Everybody who finds himself in a little difficulty and cannot at the moment think of anyone else to consult, takes the liberty of popping in upon the police magistrate and asking his advice in a friendly way. He sits like the Kadi in the gate, and every passer-by may have a word with him (Saturday Review, 15 February 1873, cited in Behlmer 1998: 183).

The courts were open from 10 am to 5 pm, Monday to Saturday and, although the conditions were often atrocious, they were usually crowded places. Some people were attracted by dispersals from the ‘poor box’; some were newspaper reporters looking for salacious stories. Like their eighteenth century amateur counterparts, the stipendiaries could administer the harsh penal system with gusto, but were also known to side with defendants against the authorities, whether poor law guardians, school attendance officers or the police. This com­ bination of authority and a degree of empathy may have assisted their informal, advisory activities: scattered evidence drawn from the memoirs of magistrates and police court missionaries, along with newspaper accounts of cases, suggests that for every person who actually saw a matrimonial complaint through to trial, perhaps three more sought relief of some kind without invoking the formal machinery of justice. Between the late nineteenth and   Matrimonial Causes Act 1878.

3



The Magistracy

53

mid twentieth centuries, therefore, hundreds of people pinned their hopes for physical and emotional rescue on the understanding of police court magistrates and their assist­ ants (Behlmer 1998: 190).

So we have here a somewhat unlikely, and little appreciated, precedent for courts applying a behaviour-focused strategy, which, on the face of it, in the early years of the twentieth century, looked extraordinarily successful. Reconciliation rates of around two-thirds of cases were claimed, and a Bill requiring a compulsory reconciliation process was introduced (without success) in Parliament in 1934 through the efforts of Claud Mullins, a magistrate who went on to promote reconciliation aggressively in his own court (Cretney 1998). But it is necessary to look beneath the surface. The apparent quantity of reconciliation was probably illusory. There were many reasons why an application might be abandoned other than the achievement of reconciliation. There was, for example, widespread misapprehension about what court orders could achieve. Many wives thought they could grant them ‘protection’ against an abusive husband. On finding that they could not, the application would be dropped. The court might also think it better not to make an order it had power to make. For example, the only remedy for non-support was imprisonment of the debtor. This might only make things worse. The courts could not make a lazy husband work, nor restrain his antisocial behaviour. Furthermore, magistrates were strongly inclined towards the domestic ideal of the dutiful wife, and opposed to divorce. They might have thought that it was better that a wife be persuaded to try to make the best of it, rather than separate and seek ineffective legal remedies. This did not mean that the relationship got any better. The Chief Magistrate said in 1922: ‘The whole object in all these matters . . . was at all costs, even at some sacrifice of the individual, to keep the home together . . . even under circumstances of some discomfort and with occasional outbreaks’. In 1936, the Departmental Committee on the Social Services in Courts of Summary Jurisdiction (Harris Committee) wrote: ‘a large number decide not to proceed with their application because a reconciliation has been effected, or because they have been persuaded, rightly or wrongly to believe that an application will be fruitless’ (Harris Committee 1936: para 6). Behlmer (1998: 212) wondered whether this practice ‘may actually have prolonged as much misery as it relieved’. It may indeed have been one reason why the issue of domestic violence, widely perceived as a social problem in the late-nineteenth century, almost disappeared from public view during the twentieth century until the 1970s. The price of sustaining relationships (insofar as they were sustained at all) may have been high. In any event, the drift of magistrates’ courts towards a significantly behaviourfocused jurisdiction was brought to an end by the Report of the Harris Committee (1936), carried into effect in the Summary Procedure (Domestic Jurisdiction) Act 1937. The Committee was alarmed by the radical nature of the 1934 Bill drafted by Mullins, and presented to Parliament by Lord Listowel. This would have removed almost any pretence of legal formalities from courts hearing domestic cases. ‘Its objective seemed to be nothing less than to transform the court’s function from

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Changing Structures and Functions

adjudication to social case work’ (Cretney 2003: 295). The Committee was firmly of the view that the primary role of courts was adjudication, and feared that conciliation (by which it meant persuading parties to drop contemplated proceedings) might lead to denial of justice. It accepted that machinery for reconciliation should be available to the court (in the case of magistrates’ courts, this was through the probation service), but opposed its compulsory use. Stephen Cretney (2003: 300) summarises the Report’s impact: The fact that the courts’ formal role was firmly defined as adjudication did not of course mean that ‘conciliation’ was not to be undertaken; but the notion that magistrates should themselves provide help and social work seemed to have gone beyond recall.

II.  The Ecclesiastical and Divorce Courts Prior to 1858, marriages could be dissolved only by Act of Parliament, but formal separation short of divorce could be granted by the ecclesiastical courts. Those courts saw themselves as protectors of marriage; indeed, of virtue and morality. Applicants came as ‘petitioners’, seeking the courts’ favours, which could therefore be refused if they had committed wrong (particularly adultery). If both parties had misbehaved, they could, as one court put it, ‘find their common remedy in mutual humiliation and mutual forgiveness’.4 The divorce courts inherited this protectionist attitude when they took over jurisdiction from the ecclesiastical courts in 1858. Their role was thoroughly inquisitorial. So much so that a major officer of the state, the Queen’s (or King’s) Proctor was established to investigate any suggestions that a divorce decree had been granted ‘contrary to the justice of the case’. This effectively meant that it may have been granted to a petitioner who was not blameless, or against a respondent who may have agreed to the divorce being granted. Either of these would have breached the principle that divorce was seen as a remedy granted against a ‘guilty’ spouse to redress a wrong done to, and against the wishes of, an ‘innocent’ spouse. The result, of course, was to maintain the marital bond between people whose relationship had utterly broken down. The Proctor (who used inquiry agents) told the 1912 Royal Commission on Divorce and Matrimonial Causes (Gorrell Commission) that over 14 years he had inquired into between 306 and 631 cases a year, representing a significant investment in resources at a time when petitions ran at about 1000 a year (Eekelaar 1994a; Cretney 2003: 178–88). The fervour with which the divorce courts sought to maintain the pretence of supporting only the morally virtuous against the morally deficient dimmed during the twentieth century, and the practice arose that petitioners who had themselves committed adultery should ‘confess’ this in a paper placed in a sealed   Proctor v Proctor (1828) 2 Hagg Con 292, 298.

4



The Demise of Reconciliation

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envelope, to be read by the judge after hearing the petition. Failure to lodge such a ‘discretion statement’ would very likely lose the case, but judges became more ready to exercise their discretion favourably. But you could never be sure. In a 1966 case, for example, a husband had formed sexual relationships with three women after his wife had left him for a third time to live with another man. The husband now wished to marry one of these women. However, he had failed to inform her that he was still married, though when he told her, she said she wanted to marry him ‘more than ever’. The court refused him his divorce, a decision upheld by the Court of Appeal. Willmer LJ, an experienced ‘divorce’ judge, said: He claims that since he met Miss K he has given up his previous habit of promiscuity and has remained faithful to her. Even so, it would be difficult to imagine a more disreputable case or one more deserving the censure of the court.5

This power of ‘censure’ was only finally removed when the reformed divorce law came into effect in 1971. It was in any case falling out of favour, and after the Second World War was largely replaced by a desire to engage in a more positive form of marriage-saving through the promotion of reconciliation. However, as will be seen, this was thought to be not so much a function of the court itself, but of welfare workers attached to the court.

III.  The Demise of Reconciliation The Harris Committee was not insensitive to the particular features of family disputes, and made important recommendations designed to make court proceedings dealing with them more benign and accessible. And, although it cautioned against over-zealous use of reconciliation by probation officers actuated by ‘personal convictions as to the sanctity of the marriage tie’, it is likely that they would have been influenced by a fear of an increase in divorce following the broadening of grounds for divorce in the Matrimonial Causes Act 1937. This fear contributed to the establishment of the Marriage Guidance Council in 1938 (Dingwall and Eekelaar 1988: 4). These concerns were exacerbated by a sharp increase in divorce during the Second World War, reaching a peak of just over 47,000 in 1947. But that very event drew attention away from the magistrates’ courts, which could not dissolve marriages, to the High Court (the divorce court), which could. Yet the magistrates possessed resources designed to seek reconciliation (the probation service), and the divorce court had none. The President of the Probate, Divorce and Admiralty Division, Lord Merriman, proposed an elaborate structure under which all undefended divorce cases would be referred to a conciliation tribunal, consisting of a lawyer and welfare worker, to try to achieve a reconciliation, or, if   Williams v Williams [1966] 2 All ER 614, 616.

5

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not, at least consensual resolution of financial and custody matters, which would then be referred to a court for decree and orders. But, in an echo of what had happened in the 1930s with regard to magistrates, the proposal was rejected by the Denning Committee (1947). The Committee felt that by the time cases came to the tribunals, it would be too late to achieve reconciliation, and that reconciliation work could not anyway be successfully carried out by a tribunal (Dingwall and Eekelaar 1988: 4; Cretney 2003: 300–04). But the Committee did recommend that welfare officers should be appointed to the divorce court and that all cases involving children should be referred to them in the hope of achieving reconciliation between the parents. Within a decade the zeal for reconciliation faded. The Royal Commission on Marriage and Divorce of 1956 simply saw the role of welfare officers as being to ‘investigate and report’; attempts at reconciliation were to be carried out by independent agencies. When the divorce law was reformed in 1969, it was recognised that attempts to try to hold estranged parties together, for example by deterring negotiation and forbidding consensual divorce, were failing. Divorce would no longer be refused if the parties had ‘colluded’ in presenting their case. Lawyers were required to certify only whether they had discussed the possibilities of reconciliation with their client and provided them with suitable contacts. No sanction was provided if they had not. In 1974, the Finer Committee endorsed ‘conciliation’ (designed to encourage agreement over post-divorce arrangements) over the goal of reconciliation. The marriage guidance movement began to redirect efforts away from ‘guidance’ aimed at saving marriages towards ‘counselling’ about the best options available to clients (Dingwall and Eekelaar 1988: 11–17). During the 1970s and early 1980s the divorce court welfare officers began to adopt a ‘conciliatory’ approach (in the sense used by the Finer Committee) in their investigative function.

IV.  Therapeutic Courts A.  The American Experience During the twentieth century, a distinctive perception of the role of family courts developed in the United States. This was related to the ‘juvenile court’ movement, which originated in the evangelical ‘child-saving’ philosophy prevailing in the late-nineteenth century in both the United States and Britain. In England this resulted in major increases in the power of poor law guardians (later, local authorities) to remove children from parents who were deemed unfit by means merely of an administrative (not judicial) order,6 and a steep increase in the number of 6   A parent could appeal against the resolution to magistrates. However, this procedural onus put the parent at substantial disadvantage.



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children sent abroad, mostly to Canada, and, later, to Australia by voluntary societies with virtually no legal regulation (Eekelaar 1994b). In America, it took the form of the juvenile court (the first of which was established in 1899). This was ideally seen as acting as ‘a wise and merciful father handles his own child’ who would take whatever action was necessary, including placing children in detention or training centres, to rescue them from bad surroundings which had led the child to cause, or suffer, harm, or where this might happen (Tanenhaus 2002; Teitelbaum 2002). Those courts claimed powers deriving from, or modelled on, English ‘chancery’ procedures, which allowed courts very wide discretion to protect the interests of vulnerable people, including children. However, in England, this power was reserved for the High Court, applied originally only to the rich, and then only sparingly (Cretney 2003: 583–88). The American juvenile courts applied it to America’s poor. In England, the limited opportunities for local authorities to invoke this jurisdiction were effectively removed in the Children Act 1989, along with their powers to remove parental rights by administrative resolution. The American ‘chancery’ model was significantly modified by the Supreme Court in re Gault,7 which insisted on observance of due process principles. It has been argued that the juvenile justice protagonists had been more concerned about keeping child offenders out of the criminal justice system than about giving courts strong interventionist powers (Zimring 2002). If so, it is ironic that the Unified Family Courts, the first of which was established in Ohio in 1914 (but which were taken up by more states much later in the century), deliberately sought to incorporate criminal matters between family members within the jurisdiction of the family court. There is, however, a rationale for this approach. The purpose of family courts was set out by the drafters of the Standard Family Court Act in 1959 as follows (Babb 1998: 35–36): To protect and safeguard family life and family units in particular, by affording to family members all possible help in resolving their justiciable problems and conflicts arising from their inter-personal relationships, in a single court with one specially-qualified staff and under one leadership, with a common philosophy and purpose, working as a unit, with a set of family records all in one place, under the Direction of one or more specially-qualified judges.

In doing this, courts could ‘deviate’ from traditional adversarial procedures, and ‘integrate’ children and family proceedings. The assignment of one judge to each family would provide ‘continuity’. In 1996, the American Bar Association defined a ‘Unified’ Family Court as A single court system with comprehensive jurisdiction over all cases involving children and relating to the family. One specially trained and interested judge addresses the legal and accompanying emotional and social issues challenging each family. Then under the auspices of the Family Court, judicial action, informal court processes and social service   387 US 1 (1967).

7

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Changing Structures and Functions agencies and resources are co-ordinated to produce a comprehensive resolution tailored to the individual family’s legal, personal, emotional and social needs. The result is a one family-one judge system that is more efficient and more compassionate for families in crises (Babb 1998: 32–33).

Another leading advocate of unified family courts has written: I think of a Unified Family Court as one-stop judicial shopping for families. Its core policy value is both efficient and therapeutic . . . a single judge in that single court, aided by a single support team, manages and decides the cases. The judge and support team develop and supervise the implementation of a plan for dispute resolution and therapeutic services for the family. . . . The Unified Family Court recognizes that, regardless of legal label, the underlying family problem is the same in each case and should be addressed in a single forum and supervised by a single judge and support team (Schepard 2008: 217–18).

A recent survey found that nearly 75 per cent of states in the United States have some kind of family court, and nearly one-third of them assigned cases on a ‘onejudge: one-family’ basis (Babb 2008). Jane Spinak (2008) contrasted two models for family courts. In the first, the resolution is achieved through a decision based on law as applied to evidence. The other is an ongoing process, in which the court continues oversight of the problems encountered by the individuals concerned, protecting their well-being by enabling them to ‘resolve’ (in the sense of deal, or cope with) the problems. This second model is clearly the one described by Babb and Schepard for the Unified Courts. The issue before the court is defined as more than simply a ‘dispute’, but as a ‘problem’, potentially affecting the whole family, which needs to be addressed and managed over the long term. Furthermore, the judge is to be aided by a ‘support team’. Under this model, the judge acts as a manager who directs the parties to high-conflict disputes to the mechanisms appropriate for it, and imposes interventions where necessary (Schepard 2000). These mechanisms can include the appointment of a ‘parenting co-ordinator’, an individual charged with overseeing the implementation of a plan approved by the court (Hunt and Trinder 2011). Although focusing mainly on ‘drug-courts’, Spinak identified a number of concerns about this model generally. It can confer considerable power over individuals; the court-based services are expensive, diverting funding from community-based services; and, while some judges perform the ‘one judge: one family’ role well, some do not. For reasons such as these, a number of American writers, while recognising the importance of the behaviour-focused approach, have recently been emphasising the judicial role. For example, Singer (2009) has observed that the goal of maintaining relationships is in conflict with another objective, often thought to be desirable, of bringing about a ‘clean break’ between the parties. She surmises that maintaining relationships favours men because women are likely to receive less money than under a clean break settlement, and be more restricted in what they can do. She is not sure that courts are appropriate mechanisms for improving the well-being and functioning of families and children. Geraghty and Mlyniec (2002)



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have worried that the ‘therapeutic’ role distracts from the necessity to resolve disputes judicially. The ‘one judge: one family’ policy could compromise the judicial role by over-familiarity with the family’s problems, especially if civil and criminal matters are mixed together. The role of counsellor could be inconsistent with the coercive exercise of judicial authority, which may become necessary. They wonder whether moneys spent on the elaborate welfare services of courts might not be better directed at ‘improving the daily lives of families and children’. The staffing costs of ‘behaviour-focused’ courts are indeed very high. Peter Salem, who has many years’ experience in family court services, has drawn attention to the problems of scarcity of resources, and advocates use of triage or screening ‘to match families to the most appropriate services’ (Salem 20098). Peter Jaffe and colleagues (Jaffe et al 2010: 139) have pointed out that delaying judicial intervention results in ‘high conflict cases drift(ing) endlessly through the court system as different alternative dispute resolution measures are tried out and expenses and frustrations mount’. None of these concerns should be seen as objections to welfare and therapeutic processes as such. They simply raise doubts as to the extent to which they can displace ‘judicial’ activity, which we regard as to be seeking outcomes that are congruent with people’s legal rights and duties and ensuring fair processes. On the other hand, it may also be mistaken to view judicial activity as if it contained no welfare or therapeutic elements, as our discussion in chapter five will indicate. The challenge is to find the best structure within which these elements can operate together.

B.  Developments in Australia and New Zealand Although the Family Court of Australia, established in 1975, was conceived of as being a ‘helping court’, with its own counselling and welfare service, in 2004 the court determined to modify its procedures in children cases which it considered were too adversarial. These were reinforced in the Family Law Amendment (Shared Parental Responsibility) Act 2006, which describes such trials as ‘less adversarial trials’ (LAT), and incorporates the Child Responsive Program (CRP). The LAT model involves active case management by a judicial officer and the CRP involves a family consultant, who is part of the court services, being involved throughout a matter. Cases begin with intake and assessment interviews with the parents, including screening for family violence and child abuse, and a family conference, which may involve an interview with the child or children separately to the parents. If the matter is not settled, a report is presented to the judge and, in the court procedure that follows, the judge starts by identifying the main issues, speaking to the parties or their representatives, and sets the timetable for future progress of the case. Each case is allocated to a single judge who is responsible for 8   See however McIsaac (2010), arguing that the first stages of mediation could perform a triage function.

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its progress through the system (Kaspiew et al 2009: 302; Fehlberg and Behrens 2008: 351–55). The Family Court of Western Australia operates a similar model. There has been a dramatic fall in applications for final orders in children cases in the Family Court of Australia in the three years following the 2006 Act (from 7479 to 2086), although this may partially reflect a continuing trend for an increasing number of cases being dealt with in the Federal Magistrates’ Courts rather than in the Family Court of Australia (Kaspiew et al 2009: 304–45). There is some concern that the Family Court of Australia provides a more thorough service than the Federal Magistrates’ Courts, although more resources are now being channelled into the latter system. However, there are also concerns that the LAT system is inconsistently operated by the judiciary, and that the system led to multiple court appearances, and is therefore expensive to run (Kaspiew et al 2009: 329–30). In 2006, New Zealand, which established a family court with objectives similar to those in Australia in 1981, introduced reforms similar to the Australian reforms described above (the Parenting Hearings Programme (PHP)). The suitability of a case to enter the process was determined initially by a judge, and selected cases began with a preliminary hearing where the judge met and talked with the parties, attempted to resolve the issues and, if that failed, set a timetable aimed at speedy resolution before the same judge. However only 7 per cent of children cases were selected for the process in the pilot areas during the first two years (Knaggs and Harland 2009) and in 2010 a new system (the ‘National Early Intervention Process’) was introduced which aimed to separate, through triage, ‘standard’ and ‘urgent’ cases. This was intended to enable the latter cases to come rapidly to a judge, thereby also allowing the standard cases to be processed more quickly. The ‘standard’ track involves reference of the parties to a ‘Parenting through Separation’ programme and to counselling, though this may be abbreviated and moved to ‘specialist’ mediation, conducted by court-appointed lawyers with specialist training in mediation. If this fails a further attempt at mediation is attempted before a judge, and finally, if necessary, there will be a hearing (Boshier et al 2011). However, the Ministry of Justice Review of the Court in 2011 noted that in 2009/10 only 24 per cent of applications exited the court process at the counselling stage or immediately afterwards, that the use of specialist mediators did not increase ‘efficiency’ and that the number of disposed applications requiring a judicial hearing increased from 3829 to 4481 for the years ending 31 March 2010 and 31 March 2011 respectively. The Review accordingly suggested that in future the court should be a legal forum only, and steps be taken to keep more cases outside the court system altogether (New Zealand Ministry of Justice 2011: 52–53). The government implemented this policy in the Family Court Proceedings Reform Bill, presented to Parliament in December 2012.



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C.  The English View If therapeutic courts are defined as those which concern themselves primarily with trying to improve the psychological or physical condition of people who have resort to them, the Harris and Denning Committees represented powerful forces in the way of their development in England and Wales. The Finer Committee (1974) maintained that position. It is first important to observe that none of these reports rejected a behaviour-focused approach in itself. Indeed, they all saw its merits. But they all considered that this was not an appropriate role for the court to take. Of the three Committees, the first, the Harris Committee (1936), gave the matter the most closely reasoned consideration. It argued: The law having provided certain measures of relief to married persons in specified circumstances, it appears to us that there should be in every case a right of direct access to the court and it should be for the court to decide on the facts of each case whether conciliation should be attempted before the legal issues are tried (Harris Committee 1936: para 16)

It commented that the 1935 Bill, drafted by Claud Mullins,would enable Justices, and even a single Justice, at a private hearing, where formal evidence is not taken, to make, with the consent of the parties orders which under the present law can only be made in public by a court under strict legal procedure. But, apart from these considerations, we are very doubtful whether, in most courts of summary jurisdiction, the delicate task of conciliation could be so effectively conducted at an informal hearing of this kind as it can by a trained probation officer in a private room. It would impose on Justices generally a new kind of responsibility which many of them for want of the necessary training, experience or time, might not be able to fulfil (Harris Committee 1936: para 18).

The Committee also expressed caution about the process even when conducted by probation officers, and warned that ‘it is not the probation officer’s function to determine whether on legal grounds the case should properly proceed to a hearing’ (Harris Committee 1936: para 16). It must be remembered, it said, that the parties to matrimonial disputes are adults and for the most part they approach the court because they desire to obtain relief from a situation which appears to them intolerable. Anything like forced conciliation may not only appear to them to be denying them their legal rights, but also may in the end only aggravate the situation. Successful conciliation can only be arrived at by the consent and co-operation of both parties (Harris Committee 1936: para 20).

The Denning Committee (1947) was more enthusiastic about the process of reconciliation. Indeed, it thought it should be attempted ‘in every case where there is a prospect of success’ (Denning Committee 1947: para 4). However, it was opposed to this being attempted by a court (or by Lord Merriman’s proposed tribunals), partly because it thought that, by the time the dispute had reached that stage, the chances of success were minimal, but also because

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Changing Structures and Functions the work of reconciliation is . . . necessarily a personal task for those who undertake it, and if it is to appeal to the Englishman’s character, must be removed as far as possible from any suspicion of official supervision or interference in the private affairs of individuals (Denning Committee 1947: para 25).

This romantic view of Englishness seems to have coloured the Committee’s view that, while every legitimate inducement should be made to persuade parties who are contemplating divorce to consult a Court Welfare Officer or one of the voluntary societies, or other suitable person at the earliest possible moment . . . no compulsion should be used (Denning Committee 1947: para 29 (vii)).

The Finer Committee (1974) proposed extensive administrative reorganisation of family business in the courts (in particular, the absorption of the magistrates’ jurisdiction into that of the county courts), and that a significant degree of welfare resources should be attached to the court. Neither of these proposals was successful. The magistrates opposed the first, and the potential cost of reorganisation and support services prevented the second. The ‘fundamental principle’ governing the family court, the Committee thought, was that: it shall be a judicial institution which, in dealing with family matters, does justice according to law. The court must not see the man, woman or child with whom it is concerned as ‘clients’ and still less as ‘patients’ for whom the court process is just another kind of ‘treatment’. The individual in the family court must, in the last resort, remain the subject of rights and not the object of assistance (Finer Committee 1974: para 4.285).

Just as the Harris Committee had been alarmed by the proposals of the 1935 Bill, and the Denning Committee by those of Lord Merriman, the Finer Committee may have been reacting against the image it held of American family courts. Noting that these combined family matters with criminal jurisdiction, it went on: In general, and including some manifestations that might be regarded as verging on the bizarre, it may be said that most American Family Courts are committed to a social work philosophy which regards family breakdown as a phenomenon to be dealt with primarily by diagnosis and treatment. Hence the American Family Court will see itself to be as much a therapeutic agency as a judicial institution (Finer Committee 1974: para 4.281).

As we have seen, the Committee strongly rejected that model. From around the turn of the century the role of the family courts began to change. The impetus for this was growing concern about the number of disputes over contact arrangements between parents and children after separation, and public demonstrations of anger by fathers’ groups over the way they perceived that courts were resolving them (Maclean 2011: ch 4). In 2002 a report of the Children Act Sub-Committee of the Advisory Board on Family Law made a series of recommendations for improving the way these disputes were handled (Advisory



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Board on Family Law 2002). Among these were proposals that the government should fund additional facilities for resolving contact disputes by negotiation, conciliation and mediation, with special mention of an in-court conciliation system and that legislation should give courts power (1) to refer a parent who disobeys an order for contact to a variety of resources including information meetings, meetings with a counsellor, parenting programmes / classes designed to deal with contact disputes; (2) to refer to a psychiatrist or psychologist, (publicly funded in the first instance); (3) to refer a non-resident parent who was violent or in breach of an order to an education programme or a perpetrator programme; (4) to place on probation with a condition of treatment or attendance at a given class or programme (Advisory Board on Family Law 2002: para 6.29).

In addition, in 2005, the government decided to promote and extend ‘in-court conciliation’ in cases concerning children, primarily contact disputes (Secretary of State for Constitutional Affairs 2005). This ‘in-court’ procedure operates immediately before a case is due to be heard. Various models have been operating. Trinder et al (2006) described three of them. In one, the parents attend a scheduled one-hour appointment with an officer of Cafcass (the Children and Family Courts Advisory and Support Service) and then report back briefly to the judge. In another, the process starts in the courtroom, but the parties go out and negotiate in the presence of the Cafcass officer, and report back. In a third, the whole process takes place in the courtroom, with the judge leading the negotiations. The proposals, implemented in a number of pilot projects, were integrated into a new procedural strategy introduced in 2004 referred to as the Private Law Programme9 which sought to ensure that, before any disputed case concerning arrangements for children was heard by a judge, there should initially have been a First Hearing Dispute Resolution Appointment (FHDRA) with a judge, attended by the parties and their representatives, where the judge would either consider and (if appropriate) approve any agreement reached, or seek to bring about an agreement, or, if that failed, set out directions and a timetable for a later hearing. The proposals concerning increasing the powers of the courts when parties failed to comply with court orders were further refined by the government in 200510 and implemented in the Children and Adoption Act 2006. The in-court initiatives, which concerned only cases involving arrangements for children, were evaluated in two reports. The first, based on three courts, found a high overall agreement rate (some 76 per cent), usually restoring or extending periods of contact. However, only some half of parents felt satisfied (Trinder et al 2006). The second evaluation (Trinder and Kellett 2007) found that, two years after the intervention, although in a majority of cases there was agreement about contact, a majority had required further intervention (40 per cent in the form of further litigation), and about 60 per cent of the initial agreements had been broken or dropped. However, the overall amount of contact increased. But, on the  http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/family/plpguide.pdf.   Parental Separation: Children’s Need and Parents’ Responsibilities: Next Steps (2005) Cm 2452.

9 10

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negative side, there was no improvement in the (already high) levels of children with adverse scores regarding their well-being. It was seen earlier that in-court mediation procedures introduced in New Zealand in 2010 seem also to have had disappointing results.11 Those models illustrate how the outcome-focused and behaviour-focused approaches to family justice can become blurred, for an attempt at a behaviourfocused solution must be made before adjudication becomes possible. However, as we will see later,12 the behaviour-focused approach may well persist even in court. Discussing the changing role of family courts in the light, particularly, of these developments, Felicity Kaganas (2010) has written that, while even prior to the Children Act 1989 ‘judges were seeking to use their authority to persuade mothers to accede to contact despite their fears for their children’ now under the amended legislation, the powers are more coercive. Courts are empowered to impose if not treatment regimes, at least counselling or educational retraining on parents and, in the majority of cases, the parents concerned are likely to be mothers resisting contact.’ (Kaganas 2010: 265–66).

But these programmes operate outside the courts themselves, and Kaganas cites a number of experienced family law judges expressing the view that it is not the role of the judiciary to change people’s minds or the nature of their relationships (Kaganas 2010: 257–58). The research reported later in this book looks more closely at the way judges deal with these issues.

V.  The Contemporary Structure and Functions of Family Courts It is important to distinguish structural aspects of family courts from the functions they assume. At one level, the 1996 American Bar Association’s definition of a family court13 is not very different from that of the Finer Committee (1974), which sought to unify the fragmented family law jurisdiction around the county court, and attach significant social services to the court. These are primarily administrative matters, but can have important practical consequences for clients of the courts. Some of the problems of a fragmented court structure may be mitigated by combining various courts in a single building, or building complex. But moving or dividing issues between courts, which follow different procedures, even if they operate in the same place, can still cause difficulty. However, in contrast to the American strategy, the Finer Committee was adamantly opposed to allowing family courts to deal with criminal matters (Finer Committee 1974:   See section IV.B of this chapter.   chs 5 and 6. 13   See section IV.A of this chapter. 11 12



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para 4.362), so much so that it was even ambivalent about allowing care proceedings in child protection matters to be dealt with in those courts because they could be initiated if a child had committed an offence. It was insistent that no further jurisdiction over criminal matters should be contemplated (Finer Committee 1974: para 4.363). An American family court judge justified the mixing of criminal matters in the jurisdiction in the following terms: The practical effects of (criminal) sentences may tumble into the Family Court in the resolution of disputes involving child support, divorce, or placement of children during the period of . . . incarceration. Intra-familial criminal offences . . . should be heard in the Family Court to maximize information available to the court and co-ordinate most effectively civil restraining, child support and custody orders’ (Page 1993: 9).

This view contemplates dealing with domestic violence separately from other criminal matters, but nevertheless as a criminal matter within the family court. Stephen Cretney (2003: 752) has remarked on the Finer Committee’s ‘puzzling’ disregard of the issue of domestic violence. This might possibly be a legacy of the masking of the issue by the marriage-saving project of reconciliation, referred to earlier, though it is likely that the emergence of other welfare concerns, the economic crises of the 1930s and the impact of two world wars were significant factors in diverting attention away from domestic violence during the first two-thirds of the twentieth century. One event often cited as contributing to the reawakening of awareness of domestic violence was the establishment of the first women’s refuge in Britain in 1971, and the account of it published in 1974 (Pizzey 1974), the same year in which the Finer Report was published (Eekelaar 1984a: 157–67). Since then, civil and criminal law have become intertwined where family violence is concerned. For example, acts prohibited by the Protection from Harassment Act 1997 may be dealt with either as civil or criminal matters, and from 2004 breach of a non-molestation order granted by a county court may be a criminal offence, and the offender prosecuted by the police whether or not the victim agrees.14 Yet civil and criminal remedies are dealt with by different courts, except for a small number of specialist ‘domestic violence’ courts, which are located in the criminal courts. Significant organisational problems led some judges and commentators to recommend consideration of the American examples of unifying jurisdiction in domestic violence cases (Burton 2004). An integrated domestic violence court was established in Croydon in 2006. This adapted court procedures so that a judge who had heard a criminal case with domestic violence elements could subsequently hear civil aspects of the case after the criminal proceedings had been completed (whether by conviction or acquittal), or, if the civil proceedings had started, if a party had pleaded guilty in the criminal proceedings and consented to the hearing by the judge. If a judge had made findings of fact in civil proceedings, a different judge would need to hear later criminal proceedings. An   Family Law Act 1996, s 42A (inserted by the Domestic Violence, Crime and Victims Act 2004).

14

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Changing Structures and Functions

evaluation in 2008 (Hester et al 2008) reported very low use of this procedure: it was used in only five cases in its first year, making evaluation difficult and raising doubts whether the costs warranted the innovations. Apart from cases involving domestic violence, the place of criminal procedures in family courts arises where children are accused of criminal behaviour. The Kilbrandon Report (1968), taking the view that children who commit offences need help rather than punishment, recommended that offending should be a ground for child protection rather than criminal proceedings. This position was rejected in England and Wales, and child offenders are dealt with in the criminal justice system. However, it was accepted in Scotland, where lay Children’s Panels conducting children’s hearings have power to take various welfare measures for child offenders as well as for children in need of protection. Nevertheless, their ‘criminal law’ functions are limited. They cannot impose punishments, and any dispute about facts must be decided separately by a Sheriff Court, although it will be referred back to the Panel for disposal (Bottoms 2002). Although the system is considered to have worked well, it suffered from shortcomings regarding the right of the child to be heard and legal representation of children in the hearings, which were addressed in the Children’s Hearings (Scotland) Act 2011. But these structural issues do not affect the view taken of the proper role of the court. If its role was entirely therapeutic, there would be a case for assigning the whole operation to welfare professionals of various kinds. Provided they could assemble a sufficient array of expertise, and had sufficient time available to them, they might have the best chance of counselling and guiding people throughout a period of family disruption. But that cannot be the only objective of family just­ ice, for at least the following reasons: 1. It may not be possible to gain sufficient co-operation of either or both parties. Coercive authority of some kind might be necessary either to commence or maintain collaboration or impose some alternative outcome if that fails. A central message of the research reported later in this book is that there are circumstances when the process of discussion between parties needs to follow a structured procedure under the guidance of an authoritative figure if a fair outcome, or perhaps any outcome, is to be reached. While it might be possible that some welfare professionals could perform this role, our evidence suggests that judges can undertake this very successfully. 2. Either or both parties may make their collaboration contingent on achieving an ‘outcome’ they consider just, or to which they believe they are entitled. 3. It cannot surely be accepted that outcomes should always be contingent only on strategic decisions and power relationships between the parties (see Batagol 2011). The interests of vulnerable parties and the claims of justice, and therefore of law, must be respected in any society that respects the value of fairness. 4. The interests of children need to be protected, either against the effects of conflicts between their parents or when they become involved with welfare



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agencies. Their interests are defined by the law, and therefore require protection by legal institutions.

VI.  Court Support Services Family courts require a special institutional response, whatever view one takes of the function of the court itself, because the interests of children are frequently at stake. This creates particular problems concerning both how children’s views are represented to the court and how the court acquires information about the child that is relevant to the issue. In private law proceedings, it was in the past virtually unknown in England and Wales for judges to see children personally, though the practice is growing (Parkinson and Cashmore 2007; Birnbaum and Bala 2010; Morag 2011). It remains rare in England and Wales. Oddly, the structure of (public law) care proceedings prior to the Children Act 1989 could lead to the presence of children in court because they were based on a model where the child was brought before the court for a form of wrongdoing whereas in fact the court was hearing allegations that they had been harmed by their parents.15 Remembering how such proceedings were conducted before the 1989 Act, Hunt et al (1999: 169–70) recalled how the researchers ‘used to watch appalled as whole sibling groups tramped into court and stood bemused before three total strangers who were searching for something friendly but neutral to say’. Children may, in theory, be represented by a lawyer. This was, and still is, unusual in private law proceedings between their parents. Children need the permission of the court to make an application for a ‘residence’ or ‘contact’ order relating to themselves. This can be done only in the High Court. Sometimes, in cases of particular difficulty, a court might make a child a party to proceedings between his or her parents, in which case a welfare professional would be appointed as guardian, who might instruct a lawyer, but even where this happens it seems the guardian usually gives a view about the child’s interests rather than acting as a voice for the child (Douglas et al 2006). If the child clashes with the guardian, the court may allow a child whom it thinks to be sufficiently competent to dismiss the guardian and instruct the lawyer directly. More usually, however, the child is not made a party, and welfare professionals can be appointed in such cases to inform the court about the child’s welfare. The agency used for this purpose in the magistrates’ courts in England and Wales used to be the Probation probation Serviceservice. That service, however, primarily dealt with adult offenders in criminal cases. After the Second World War, an independent ‘Divorce Court Welfare Service’ was established in the High Court, but when the divorce jurisdiction was exercised in county courts, the service was provided by probation officers.   See ch 7, section II.

15

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A different system operated in care proceedings. The child was, technically, a party to the proceedings, and therefore would be represented by a solicitor, who might possibly engage an independent expert. However courts relied primarily on local authority social workers to have investigated the case, although their evid­ ence could be tested in court by the child’s solicitor. After the Children Act 1975, courts were empowered to appoint an independent ‘guardian ad litem’ to represent the child, though they initially did this only in restricted circumstances.16 The guardians were drawn from the probation service, or could be a retired social worker or a social worker from a different authority from that involved in the case. The guardian would be represented by a lawyer. The combination of a lawyer and a welfare worker to represent the child’s interests has been called the ‘tandem model’, and has remained a characteristic feature of care proceedings in England and Wales. To add to the complexity, in some cases the court might appoint the Official Solicitor to represent the child. This Office, established in 1875 and associated with the Lord Chancellor’s Department, also looked after the interests of vulnerable adults in litigation, and those charged with contempt of court (and still does so). The Official Solicitor’s office would however only be involved in especially difficult cases, mostly in the High Court. In developing its proposals for a family court, the Finer Committee recognised that a social welfare service would be needed ‘through which the family court will act in obtaining the information it requires to make orders concerning children, (and) in ensuring the availability of the supportive services needed to deal with family problems’ (Finer Committee 1974, paras 4.316–17). The Committee discussed the advantages and disadvantages of the provision then current. Given its hostility to intermingling criminal and family issues, it was predictably hostile to its provision by the probation service (para 4.322). It saw advantages in drawing on social workers from local authorities, suggesting they could be located in a ‘specialised section within local authority social services departments’ (para 4.324). Surprisingly, the Committee appeared to be more concerned that the service should be seen to be independent of the court rather than of the local authority, despite recognising possible conflicts of interests where the authority was involved in a case (paras 4.328 and 4.336). But it also saw ‘strong attraction’ in a new service located within the court (para 4.330). In the end, it concluded that ‘quality’ was more important than ‘formal structures’ and made no clear recommendation on the issue. As the Finer Committee’s proposals for a family court were not implemented, the ‘welfare’ services remained largely unchanged. However, during the 1980s, the role of the welfare officers moved away from reporting towards promoting agreement (James 1988) and from 1976 local authorities established and administered panels from which specialist social workers could be drawn to act as guardians ad litem and reporting officers in care cases, a system formalised in 1984. The use of the probation service in family cases began, however, to be increasingly seen as   See ch 7, section VI.

16



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anomalous, and what has been seen as a move in the criminal justice system to a ‘more punitive role’ under the New Labour administration (Cretney 2003: 773) made its involvement in family issues no longer tenable. In any case this ‘civil work’ constituted less than 10 per cent of its budget (Hunt and Lawson 1999: 2). In 1998 the government proposed replacing the fragmented sources of support with a new, unified, service ‘to promote the welfare of children before the courts and to provide other advice and support services for families involved in such proceedings’ (Department of Health 1998: 24). The service should be ‘independent’ in the sense of not being improperly influenced by other parties involved in the proceedings and other services, such as local authorities, and should also allow employees ‘professional freedom or autonomy from internal management’ (Department of Health 1998: 29). Thus the Children and Family Courts Advisory and Support Service (Cafcass) was established in 2001,17 initially accountable to the Lord Chancellor’s Department. This was later transferred to the Department for Education and Skills, but in 2012 it was planned to return it to the Lord Chancellor’s Department’s successor, the Ministry of Justice by 2015. The guardian ad litem and divorce court welfare services previously supplied to the family courts by independent social workers and the probation service were now to be supplied by employees of Cafcass, or people under contractual arrangement with Cafcass. These would perform the roles of (what were now called) Children’s Guardians, Children and Family Reporters, Reporting Officers and Parental Reporters. Cases formerly handled by the Official Solicitor were now assigned to Cafcass Legal.

VII.  The Recommendations of the Family Justice Review A. Courts The Family Justice Review initiated in March 2010 provided another opportunity to review the way courts deal with family matters in England and Wales. The Review’s Final Report was published in November 2011 (Review Panel 2011). In many respects, the Review follows in the footsteps of the Finer Committee. The Finer Committee had been bemused by the fragmentary nature of the court system that implemented family law (Finer Committee 1974: paras 4.344–45) and had recommended a unified structure, incorporating judges and magistrates, which, at local level, would be under the direction of a county court judge (Finer Committee 1974: paras 4.352–56). The Family Justice Review was similarly disturbed by the complexity of the structure, and proposed that   Criminal Justice and Court Services Act 2000, s 12.

17

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Changing Structures and Functions A single family court, with a single point of entry, should replace the current three tiers of court. All levels of the family judiciary (including magistrates) should sit in the family court and work should be allocated according to case complexity (Review Panel 2011: para 36).

The Review wished to encourage a larger degree of judicial continuity in dealing with individual cases (Review Panel 2011: para 2.126) and also the specialisation of judges and magistrates in family matters. Designated Family Judges would have responsibility for the local courts, but not the High Court, to which exceptional cases would be reserved. Furthermore, a Vice-President of the Family Division would monitor performance across the family judiciary (Review Panel 2011: para 2.118). The government accepted the Review’s call for a ‘single family court with a single point of entry’, and for greater judicial continuity, specialisation, leadership and control (Ministry of Justice and Department for Education 2012: 40–45). The Review called for stronger management by the judiciary, assisted by Her Majesty’s Courts and Tribunals Service (HMCTS), not only over organisation of caseloads within the system but also over the progression of individual cases (Review Panel 2011, para 2.148). Mr Justice Ryder was appointed by the President of the Family Division to respond to that call and has made detailed proposals as to how this can be achieved in respect to both public law and private law cases (Mr Justice Ryder 2012).

B.  Family Court Support Services We have seen that the Finer Committee resolutely maintained that the court should be a judicial and not a social work body, though it saw it as being import­ ant for the court to work closely with non-legal professionals, recommending that the court should have ‘professionally trained staff to assist both the court and the parties appearing before it in all matters requiring social work services and advice’ (Finer Committee 1974: para 4.283). The Family Justice Review maintained a similar distinction. However, with regard to services connected with the court, it went further than the Finer Committee in recommending the establishment of a Family Justice Service, charged with prioritising the interests of children, that would have overall responsibility for and budgetary control over, the delivery of court-related social work services, mediation, experts and out-of-court resolution services. Its remit would not cover the judiciary, nor legal services, except, eventually, lawyers acting for children (Review Panel 2011: paras 19, 21, 2.41, 2.49, 2.62). Special arrangements would need to be made in Wales, where Cafcass Cymru is responsible to the Welsh government. The Review recognised (Review Panel 2011: para 2.54) that at least initially, the bulk of the Family Justice Service would consist of former Cafcass employees. This would help give children a strong voice in the Family Justice Service. But it would be a substantially different organisation with much broader responsibil­ ities. Government would need to equip the new organisation with strong management and appropriately broad governance arrangements.



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The Review had recommended that its proposed Family Justice Service should be preceded by the work of an ‘Interim Board’ which would ‘plan for more radical change on a defined timescale towards a Family Justice Service’ (Review Panel 2011: para 18). The government more cautiously agreed to set up an interim board ‘in advance of any wider structural reform’ (Ministry of Justice and Department of Education 2012: 37). The nature of those reforms has not yet been defined, though there is much rhetoric about improving performance, creating greater coherence and ‘galvanis(ing) activity’. One significant issue has been the ability of Cafcass to fulfil the functions assigned to it when it was created in 2001. Research had drawn attention to the complexity of merging the pre-existing structures, particularly in the light of the different nature of the roles of divorce court welfare officers and children’s guardians, and advised against undue haste (Hunt and Lawson 1999: 122). However, its establishment was characterised by insufficient preparation, slow appointment of senior management and insufficient funding (House of Commons Committee on the Lord Chancellor’s Department 2003: para 19). Shortly afterwards, many former guardians, who had been self-employed, were dissatisfied with the terms of employment or appointment offered by Cafcass, and retired. An inquiry by a House of Commons Committee in 2003 found serious failings in the establishment and management of the new Service. Too little time was allowed for its establishment, leaving the organisation at a disadvantage from the start. Once established, CAFCASS failed to make proper use of the preparatory work which had been done, compounding the difficulties. Relations with self employed guardians were mishandled, resulting in the alienation of an important sector of the workforce. The focus on the dispute and an over-emphasis on the creation of management structures led to the neglect of other important aspects of the service, including training and professional development, IT and the development of support services for children and families experiencing relationship breakdown. Meanwhile, the delivery of CAFCASS’s core services failed to improve’(House of Commons Committee on the Lord Chancellor’s Department 2003: 5).

The hopes that Cafcass might provide support services such as contact centres, mediation, parent education and other support services for parents and children post-separation and divorce as well as its core role of reporting and representation were unfulfilled. The Service’s recovery was further hit by an unexpected rise in care proceedings after the death of a child, known as Baby Peter, in 2008. In 2010, the National Audit Office found that to be successful the (Service’s) transformation programme required greater organisational cohesiveness and improvements in staff morale; sickness absence remained high; relationships with partner organisations were good in some areas but poor in others; Cafcass faced continuing high demand for its services and pressure to improve responsiveness and Cafcass’s data accuracy needed further improvement (National Audit Office 2010: 11).

In 2012 the Coalition government expressed the view that Cafcass had made ‘substantial progress in its performance’, in the form of a 15 per cent increase in

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‘productivity’ since 2010, though its only additional support was to announce that its ‘sponsorship’ would move from the Department for Education back to the Ministry of Justice (Ministry of Justice and Department of Education 2012: 27). We will revert to these issues when we consider public law children’s cases in chapter seven. The matters to be covered by the Review’s proposed Family Justice Service fall within our view of the family justice system. The strength of the proposal to establish the Service lies in its potential to acquire an overall picture of the operation of this segment of the family justice system, and take responsibility for its quality. However, Doughty and Murch (2012) have suggested that the proposals, as implemented by the government, raise constitutional issues respecting judicial independence. This is based on a view that court-related services, including mediation, are covered by the principle of judicial independence and should be regarded as ‘part of the interdisciplinary family court team accountable to the local Designated Family Court Judge’. As such, they should become the responsibility of HMCTS rather than a Family Justice Board, located within the Ministry of Justice, domin­ ated by civil servants and representatives of administrative agencies. Doughty and Murch raise serious issues which require more extensive examin­ ation than we can give here. We have explained earlier that we regard services such as mediation, court support, and even lawyers and to some extent the police, as functionally part of a ‘family justice system’. However, we are not wholly convinced that this entails that they should be seen as falling within the same organisational structure as the judiciary. But we do see the importance of independence from government, as is indeed the case for lawyers, the police and independent professionals. It would be important that the Family Justice Board operated in a way similar to the Board of HMCTS, which is itself an agency of the Ministry of Justice, whose chairman is independent and contains representatives of the judiciary. Whether this would be better achieved through HMCTS, as preferred by Doughty and Murch, or through a separate Family Justice Board, can be debated. Whatever view is taken of that, the Service (or Board) would need both to work closely with the judiciary, lawyers and local authorities, and would be expected to promote interdisciplinary collaboration between them (Review Panel 2011: para 2.184 ff). If we add to this the enhancement of judicial management within the court structure, the proposals could lead to improving the cohesion between the court structure, the legal profession and non-legal professionals while maintaining the separateness of the structure of the court system. But structure is a different matter from the roles played by actors within the structure. The next chapter examines in some detail the roles undertaken by family judges.

5 Judging We turn now to our empirical observations of the activities of 12 judges and Legal Advisers in 10 different courts that deal with family matters in England and Wales carried out between February 2009 and August 2010. As we explain later, we have confined our study to the everyday business of the lower courts where the great majority of cases are heard. We have benefited by the publication, after our observations were made, of the descriptions and comments by Penny Darbyshire in her chapter on the work of family judges made in the context of her study of the working lives of the judiciary as a whole conducted between 2003 and 2007 and based on observations of 21 judges in 14 courts (Darbyshire 2011: ch 12). We are struck by the close correspondence between Darbyshire’s assessment of the way family judges work and our own, and consider that this strengthens the probability that these observations from our small study could be generalised across the family justice system. Reference will be made to Darbyshire’s observations at the end of the presentation of our data. We have developed a characterisation of the roles that we observed being performed by the judges, and the allocation of their time, which will assist us in assessing this evidence about the way family justice operates in this jurisdiction. We open, however, by giving a brief account of the institutional structure as it was during the period in which the research took place before proceeding to present our evidence.

I.  The Framework of the Family Courts in England and Wales As the Family Justice Review (Review Panel 2011) discovered, the structure of the family courts is complex and confusing for those using them and working in the courts. This description is taken from the Review’s Interim Report (Ministry of Justice 2011b: Annex M). Work in the family justice system is allocated to different levels of court and, within each court, to different levels of judiciary or different individual judges depending upon the authorisation that each judge may have to hear a particular category of case. The lowest level of court is the Family Proceedings Court, above it is the county court and

74

Judging above that is the High Court, Family Division. Cases are allocated to a particular court in accordance with the Allocation and Transfer of Proceedings Order 2008 and the Practice Direction: Allocation and Transfer of Proceedings. Family Proceedings Courts: A Family Proceedings Court (FPC) is a magistrates’ court. This is a court of first instance that deals with most types of family proceedings except for divorce and ancillary relief (marital property) cases. All public law cases (with few exceptions) must be commenced in a FPC. Cases are either heard in front of a bench of lay magistrates or a District Judge (magistrates’ court). Legal advisers, employed by Her Majesty’s Courts Service (HMCTS) advise magistrates in these courts and assist with the formulation and recording of reasons. Legal advisers also have powers to deal with some straight forward matters on their own. In accordance with the Allocation Order and the Practice Direction the FPC will transfer to the local family county court any case which is not appropriate for hearing in a FPC. County Court: Not all county courts can deal with all types of family matters. Different county courts have different jurisdictions in relation to family work. Circuit and District Judges deal with the work in the county courts. Recorders (part-time Circuit Judges) and Deputy District Judges (part-time District Judges) also sit in the county court. A county court hears appeals from the FPC. A circuit judge in the county court hears appeals from a district judge of that court. In accordance with the Allocation Order and the Practice Direction a county court will transfer to the High Court any case which is not appropriate for hearing at county court level; equally, a county court may transfer to its local FPC any case proceeding at county court level which is more appropriate for determin­ ation by the FPC. Appeals from a circuit judge in a county court are heard by the Court of Appeal, Civil Division. Type of county court Non-divorce county courts: Divorce: Family hearing centre: Adoption centre: Care centre:

Jurisdiction Domestic violence injunctions Divorce and non-contested private law matters Divorce and private law Divorce, private law and adoptions Divorce, private law, adoptions and public law

High Court of Justice: The most complex cases are heard in the Family Division of the High Court. In addition the High Court hears all cases of international child abduction. Outside the statutory scheme for family law (for example the Children Act 1989), the inherent jurisdiction of the High Court is available for family and private law matters which require determination but are not directly covered by the statutory scheme (for example vital decisions concerning medical treatment or, until recently, protection from forced marriage). Appeals from the High Court, Family Division are heard by the Court of Appeal, Civil Division.

As stated above, all public law cases are expected to start in the Family Proceedings Court (FPC) but may be transferred up to the county court if complex (and also transferred down to the FPC by the county court if the matters



The Framework of the Family Courts

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seem after all to be less complex, in order to speed up the matter). The transfer process is easier to manage where the FPC and county court are located in the same building. FPCs can also deal with private law children matters, mainly contact and residence following divorce or separation, but not with the divorce itself. In 2009, when the fieldwork began, the FPCs dealt with 19,750 public law applications and over 27,670 private law children applications. Divorce county courts can deal with all private law family proceedings, but have to refer any contested matter to a Family Hearing Centre, Adoption Centre or Care Centre for trial. Circuit Judges and District Judges who deal with children matters in the county courts have to be authorised to do so after training. The nominated Circuit Judges can deal with all public and private law matters, and there is also a group of Circuit Judges who can deal with private law but not public law matters. The District Judges can hear uncontested public law cases, and all private law cases. In 2009 the county courts received over 108,670 private law applications and dealt with 5770 public law cases. In the same year, the High Court, where there are 17 specialist judges led by the President of the Family Division, dealt with 290 public law and 1150 private law cases (Ministry of Justice 2010b: ch 2). It is difficult to establish the exact number of ‘family judges’ but in April 2009 the number of full-time judicial office holders (salaried judges) was: 640 circuit judges (not all doing family work); 444 district judges doing civil and family work; 1223 recorders working as part-time judges (but there is no clear information on how many do family work); 29,000 lay magistrates (but again there is no clear account of how many are doing family work) (Ministry of Justice 2010b: ch 2). District Judges and Circuit Judges usually sit for about 100 days a year, and 48,000 judicial sitting days a year are devoted to family work. Appointments to the Bench until recently were made by the Lord Chancellor relying on unofficial soundings from members of the profession. Since the setting up of the independent Judicial Appointments Commission (JAC) in 2006 the process has become more transparent. The qualities and abilities required are published on the JAC website, together with the details of posts to be filled and the relevant salaries. The generic qualities and abilities required for appointment are grouped under the following headings: intellectual capacity; personal qualities; ability to understand and deal fairly; authority and communication skills; efficiency. Additional sets of qualities are indicated for more senior posts involving management and leadership roles, a matter emphasised by the Family Justice Review (Review Panel 2011: 63–70). The JAC carried out a consultation exercise on the matter in June 2011, the results of which are available on their website. The need for review and appraisals of judicial work, and in particular the need for judges to have an opportunity to reflect on their practice as well as the need for some form of support for judges dealing with difficult and distressing family cases day after day is becoming a matter of concern. This might be provided through

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away days, or some form of what in the context of social work is called ‘supervision’, where each practitioner has regular contact with an experienced colleague (not a line manager) with whom to talk about their work. This both helps to deal with stress and also encourages benefiting from experience. The Judicial Office, established in 2006 following the Constitutional Reform Act 2005, with the function of supporting the judiciary as their managerial responsibilities develop, and which reports to the Lord Chief Justice, will, it is hoped, facilitate the development of this kind of process. The judiciary has traditionally and properly fiercely defended its independence and freedom from administrative burdens. However, the constitutional changes of 2005 and the setting up of the JAC and Judicial Office, followed by the assumption of training for judicial office holders by the Judicial College in 2011, which are both independent and stronger administrative bodies than those they replaced, should enable the judiciary to develop their professional practice and cope with the greater administrative burdens being placed on them. The better they manage themselves, the easier it will be to resist external management as the court service has to respond to increasing demand and tightly controlled resources (see Mr Justice Ryder 2012). Because 10 years’ practice as a lawyer is regarded as necessary for appointment to a salaried judicial post, and it is assumed that experienced practitioners are familiar with the ways of the court, it is not surprising that a system of judicial training comparable to that provided for career judges in continental Europe has not developed. However, the Judicial College is working on further developing training in ‘judgecraft’ and it has been recognised since the Children Act 1989 that specific training in family law is essential in children work.1 The Family Qualifying Test set for District Judges is published on its website, with the examiners’ comments, which are somewhat critical. The traditional lack of interest in training in management skills is being addressed in the Judicial Office document Prospectus 2011-2012 Courts Judiciary. However, there are few opportunities for mentoring, self-reflection and audit or appraisal when practitioners move from the body of the court to the Bench. This is particularly important given the lack of feedback on the outcomes of their adjudicative decisions. For example, some judges who contributed to the review of the Forced Marriage (Civil Protection) Act 2007 (Ministry of Justice 2009) after the legislation had been in force for a year, expressed concern that they did not know the effects of their decisions. Whether such information should be provided requires careful thought, however, not only because it will be difficult to obtain it either at all or in sufficient detail to allow the impact of the decision to be properly understood, but also because there is a risk that such knowledge about a specific case could affect the judge’s ability to take a suitability detached view in making subsequent decisions.

  See Judicial College Prospectus April 2011–March 2012: www.judiciary.gov.uk.

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The Empirical Evidence: Judges at Work

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II.  The Empirical Evidence: Judges at Work A. Methodology As useful as it may be, the information above does not convey the realities of dayto-day judicial activity in family law cases. There have been studies that have sought to describe people’s experiences of their appearances in the family courts. These are often coloured by the wrong that a litigant feels they have suffered at the hands of the other party (Hunt 2010: 20–21). There is also research reporting conflicting reactions to attempts to push parties to settle without adjudication (Hunt 2010: 24). Our research does not seek to contribute to that body of know­ ledge. Rather, it seeks to clarify what family judges actually do. Research of this kind is very labour intensive, is heavily reliant on the goodwill of busy professionals, and can usually only cover a very small corner of the national scene: a snapshot. We have, however, no reason to believe that what we have recorded is atypical, and this belief is reinforced by the account by Darbyshire (2011). Our research concentrated on the work of the lower courts. We observed proceedings in the Family Proceedings Courts which are heard by lay magistrates assisted by a Legal Adviser, or by specially trained District Judges, and in county courts which are heard by District Judges and Circuit Judges. The study did not extend to the High Court, which hears more complex cases at first instance as well as appeals from the FPCs and District and Circuit Judges in the county courts, or to the Court of Appeal, which hears appeals against the decisions of High Court and Circuit Judges, or to the Supreme Court, which hears appeals from the Court of Appeal. We observed 23 judges and Legal Advisers throughout their working day, chosen to represent a range of county courts and FPCs across the country. We took full field notes which were anonymised in transcription, and did not interview the judges though we were always grateful for any comments made to us in the course of the day. The judges understood that we would prepare an account of what we observed, but that the greatest care would be taken to avoid even ‘jigsaw recognition’2 of any individual or case. The research recorded all the actions the judges performed in doing their job. The researcher was permitted to observe the judge throughout the day, both inside and outside the courtroom. These observations were noted contemporaneously by the researcher, and written up when the day was concluded. All the information presented here has been carefully anonymised and redacted to prevent recognition of any individual or case. As a further precaution, to prevent possible identification, some non-essential details have been changed. For the purposes of the analysis, the events in the courtroom have been broken down into separate ‘matters’ that the judges dealt with, these matters being put to 2   This refers to the possibility that a number of separate non-identifying pieces of information might together lead to identification.

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the judge for some kind of disposal in the courtroom. With regard to what occurred outside the courtroom, the events were too fluid to lend themselves to this form of analysis. Often the judge would read papers, and while doing so might be interrupted by questions concerning listing, or information about the state of the cases scheduled to be heard later. There was not always a clear demarcation between the kinds of matters that arose outside and inside the courtroom. However, those that were addressed within the courtroom, the ‘matters’ we are about to discuss, ranged from full-blown trials to cases dealt with on paper and what could be considered primarily administrative functions. Forty-eight separate ‘matters’ were observed in 10 courts across 12 full working days. The courts were geographically spread throughout the north of England, Wales, the Home Counties and London, and the South West. In addition, time was spent with members of the judiciary in a further eight courts, as preparation and background to the final observations. Those visits are not analysed in detail here, but contribute to the researchers’ better understanding of court work, and included criminal and civil work for comparison. We are enormously grateful to the judges, who invited us to sit with them, and introduced us to colleagues who were also willing to help, and to magistrates, Legal Advisers and court staff who made it possible for us to put together this account. The matters analysed in this chapter were dealt with by seven judges (three District Judges and four Circuit Judges), three magistrates and two Legal Advisers. They included an all-day hearing of allegations made by a local authority leading to a care order, short sessions where parties would go in and out of the courtroom several times in a morning or afternoon while being encouraged to resolve a contact or financial dispute, brief hearings to set a timetable for future hearings, and the pronouncement of decrees nisi in uncontested divorce applications in an empty courtroom. The hearings did not always reflect the published list, as there were last minute changes in the circumstances of parties or witnesses, and a hearing expected to be final might not be able to be resolved, while an interim hearing might unexpectedly resolve all matters and become a final hearing.

B.  Framework of Analysis: Judicial Roles In order to assist in analysing and clarifying the complex and varied character of that work, we have tried to make our own representation of the tasks undertaken in terms of roles played by the judge in dealing with each matter. While these characterisations are inevitably a matter of our judgement, we will give evidence on each matter observed to indicate the basis on which our assessment is based. Of course a judge may play more than one role in a single matter. Some roles may overlap with others and we have occasionally described more than one role being performed in a single matter. We have, however, made a primary classification in terms of the ‘dominant’ role or roles played by the judge in each matter.



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We have arranged the roles we identified as being played by the judges into three groups, as set out in Table 5.1. The first group involves three roles associated with ‘legal activity’, in the sense of deciding and/or implementing measures in accordance with legal rules or principles, the traditional core work of the judiciary. The second group comprises two roles related to ‘management’, a function which is now expanding. The third group, which we have labelled ‘helping’, comprises two roles perhaps more often associated with alternative dispute resolution rather than an adversarial court setting. In performing these roles the judge engages in discussion with the parties with the purpose of moving them towards an agreement, and in the process often either gives information, in some cases almost advice, and comes close to mediation. Table 5.1: Roles undertaken by judges Roles

Description

Group A Legal Activity Adjudicator and Umpire

This is the role ascribed to judges where they hear a contested matter, whether of fact, law or disposal, with the aim of imposing an outcome. This role is sometimes associated with acting as an umpire over the presentation of arguments and evidence, where the judge presides over forensic argument between counsel in what may be called the ‘traditional’ manner.

Scrutiniser

Here the judge holds a public authority to account in discharging its prescribed responsibilities. In some cases this might extend to educating authorities or reminding them of their role, or even directing them under the Children Act to perform certain tasks even when scarce resources make this difficult.

Administrator

Here the decision involves the application of a pre-­ existing regulation where there is no issue to be resolved between parties. However, the fact that the act is per­ formed by a judge gives it a particular authority.

Group B Management Managing a hearing

Here the judge assists one or both parties or their rep­ resentatives in the process of presenting their case at the hearing.

Managing case preparation

Here the judge gives guidance, or directions, about how the case is to be prepared prior to a hearing to take place in the future, either at the outset of proceedings or at a later stage in them. In doing this judges were often concerned that the matters should be presented in such a way as to make the case decidable at the future hearing.

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Table 5.1: (cont.) Roles

Description

Group C Help Facilitating an agreed outcome

Here the judge engages directly with the parties or their representatives in identifying an outcome on which they can agree.

Assisting by providing information

This can be a specific element of facilitation, where the judge provides direct information relevant to a party’s case to assist a party to deal with his or her difficulties, or looks ahead by trying to prevent future disputes arising by careful drafting of orders, or simply provides information that assists a party on how to perform their obligations.

i.  Legal Activity Within this group the first role we consider is what is traditionally thought of as central to the judicial role, adjudication. This involves making a decision on the matter in dispute between contesting parties. It follows a hearing in which, traditionally, the judge presides over the presentation by relevant parties of their case, and ensures that this is done fairly. This role can be likened to that of an ‘umpire’. On two occasions we observed this umpiring role, but did not observe its ‘natural’ outcome, namely, adjudication, since that would have occurred at a later stage. For the purposes of our analysis, however, we have treated the adjudication and umpiring roles together. This is followed by another legal activity that does not necessarily involve adjudication. This is the scrutiny of another body’s actions to ensure it follows the relevant rules. A third type of legal activity was essentially administrative. In this case, the judge effectively applies an existing rule, usually where there is no issue to resolve between parties. Often they concerned procedural matters. It may however involve legal interpretation and the judge applies the rule with the full authority of the judicial office.

ii. Management We have divided this category into two forms. In one, the judge actively manages the hearing itself. The judge does not simply leave it to the parties to present their case, but becomes involved in the way this is done. This is particularly evident where a party is not legally represented (known as a ‘litigant in person’ [or LIP] or ‘selfrepresenting litigant’ [or SRL]). The other form of management involves discussing with the parties, or their representatives, the steps that must be taken in preparation for a later hearing. These ‘directions hearings’ are a standard feature of judicial case management, and are necessary in order to minimise the risk of a hearing being aborted, or of being unnecessarily protracted if, for example, it includes non-­



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justiciable matters, or delay caused because necessary preliminary steps have not been taken. These two groups of roles were expected, but in addition we found an unexpected third category whereby the judges were directly providing help.

iii. Help Helping took the form of two types of role. The most dominant was where judges actively sought to bring about an agreement between the parties. Although one judge described this as ‘mediation’, we think that the fact that the judge is an authoritative figure with specialist legal knowledge distinguishes this role from mediation, and is better described as ‘facilitation’. Connected to, but distinct from, this was the final role we noted. Although one judge told us that it was not his role to give advice, judges did sometimes provide information, which could come very close to offering advice from the perspective of the parties.

C.  Summary of Findings We observed 48 matters. Table 5.2 records the occasions during the handling of the 48 observed ‘matters’ when a particular role was observed as being prominent. We call such observations ‘role occurrences’. In 11 matters two roles were observed as being significant, and in such cases we have recorded both roles. We therefore recorded 59 role occurrences in the 48 ‘matters’ observed. Table 5.2 shows that the work of the family judge requires performance of a wide variety of roles. This is of great importance, because the perception people have of what judges ‘do’ determines their idea of what goes on in court. We have referred earlier to the dominant image that when family cases reach court, they are subjected to an ‘adversarial’ process. But in fact, of the 59 role occurrences in the 48 matters that we saw coming before the courts, only five (8.5 per cent) took the ‘traditional’ form in which arguments were presented and adjudication made. The most frequently exercised roles were those of ‘administrator’ (25.4 per cent) and ‘managing preparations’ (23.7 per cent of the 59 occurrences), followed by ‘facilitating an agreement’ (22.0 per cent). Indeed, those three roles comprised 71 per cent of all the roles observed. The ‘helping’ role accounted for nearly onethird (28.7 per cent) of the roles observed, indicating that the court is a significant resource for supporting people in family difficulties in a way that does not involve adjudication in an adversarial context. It does not, of course, follow that the equivalent proportions of time were spent in the same kinds of activity. A single adjudication might take a day or more, whereas an administrative act might take a few minutes. Table 5.3 gives a breakdown of how time was distributed according to role. In those matters where two roles were considered to have been significant, we have divided the time equally between the roles. We do not claim that this is an exact measure, but it can illustrate how in such cases two roles can be closely intermingled.

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Table 5.2:  Numbers of role occurrences, giving breakdown by status of judge/court Role

CJ

DJ and DDJ

FPC

Totals Numbers

%

Legal Activity Umpire/Adjudicator

3

1

1

5

8.5

Scrutiniser

2

1

1

4

6.8

Administrator

1

12

2

15

25.4

Sub-total

6

14

4

24

40.7

Managing preparations

2

11

1

14

23.7

Managing hearing

1

2

1

4

6.8

Sub-total

3

13

2

18

30.5

Facilitating an agreed outcome

1

11

13

22.0

Providing information

0

4

4

6.7

Management

Help

Sub-total Total

0

1

15

1

17

28.7

10

42

7

59

99.9

CJ = Circuit Judge; DDJ = Deputy District Judge; DJ = District Judge; FPC = Family Proceedings Court (Magistrates and Legal Adviser: in practice the Legal Adviser). Table 5.3: Time spent in roles in public and private matters Role Legal activity Adjudicator/Umpire Scrutiniser Administrator Sub-total Management Managing preparations for hearing Managing hearing Sub-total Help Facilitating an agreed outcome Providing information Sub-total Totals

Time spent (minutes) Public Private

Totals Minutes

%

740 140 70 950

150 10 115 275

890 150 185 1225

34.1 5.7 7.1 46.9

290

295

585

22.5

0 290

190 485

190 775

7.3 29.8

0 0 0 1240

520 87 607 1367

520 87 607 2607

19.9 3.3 23.2 99.9



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As expected, the time spent adjudicating/umpiring a matter is much longer than the time spent in other roles. Although that role comprised only 8.5 per cent of roles observed, it took up 34.1 per cent of the total time during which these judges were observed. This difference probably at least partly explains the perception that this is what family judges mostly do. But as we have seen, the proportion of matters coming before them which are dealt with in that way is very small. In any case, although 47 per cent of judicial court time observed was, appropriately enough, spent on ‘legal activity’ (which includes scrutiny and administration), more than half of the judges’ time was spent either in a management role or ‘helping’, primarily as a facilitator. This last role constituted one-fifth of the total time observed. It was often combined with another role, either providing information or managing the hearing. It should also be observed that the ‘helping role’ was not observed in a public law matter. On the other hand, 83 per cent of the time spent in the adjudicating/umpiring role was on public law issues.3 We will examine in more detail in the next chapter how these matters related to the distribution of business between the courts. But to complete this more general presentation of our findings, we now set out brief summaries of each matter both to substantiate the analysis set out above and to give more detailed accounts of selected matters in order to convey more vividly the nature of the work of the judges that was observed.

D.  Description of Matters In this section we describe the ‘matters’ that came before the judges in more detail, and give the evidence upon which we characterised the roles played by the judges. We will identify the ‘matters’ by reference to the numbers allocated to them in the researcher’s transcript of the observations. The full list is set out in Table 5.4 at the end of this chapter.

i.  Legal Activity a.  Adjudicator and Umpire We will start by describing the traditional role of adjudicator, followed by that of umpiring where evidence was being tested. In only two of the 48 matters observed did we see clear adjudication after the hearing of evidence presented by opposing parties in the classic adversarial manner. In one (Matter 20), adjudication followed long and determined efforts by a Deputy District Judge lasting half a day to move the parties towards agreement on financial matters following divorce by seeking better information about the couple’s resources, and trying to avoid the case going to a final contested hearing by stressing how much this would cost. The judge said: ‘In this building you will   See Table 5.3.

3

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know that we give every opportunity for discussion, so, have you settled? If not, I will adjudicate’. It had not, and he did, while still expressing the hope that the substantive matter would settle at a subsequent Financial Dispute Resolution meeting in three months’ time.4 In the other matter (Matter 31), a public law case, the Circuit Judge was focused on the needs of a newborn baby, and heard conflicting evidence and argument about how the child might be protected without being removed from the mother. The judge was unable to find satisfactory reassurance, and an interim care order was made. In both cases evidence was sought, heard and tested. In the money case evidence was not taken on oath and the role of facilitator was reluctantly abandoned by the judge before recourse to adjudication. In the care case, a full contested hearing took place with evidence on oath and examination of witnesses after which an order was made. In Matter 48 evid­ ence was heard and a non-molestation ordered renewed.5 In two other care cases, (Matter 3 and Matter 30), evidence was heard on oath and tested in final hearings, but we did not see the order made. To give a fuller picture of the information on which we based our characterisation of judicial roles we offer further detail on two contrasting adjudications, in Matters 30 and 31. In Matter 30 an application had been made for maintenance pending suit (mps). A Financial Dispute Resolution hearing of all issues had been listed in six months’ time. Early in the proceedings, the District Judge says: ‘I’m trying to hold a situation together till then in the hope of a settlement’. He thinks that if they settle the present application, they will be more likely to settle at the FDR. But the parties fail to agree the mps. The judge points up the potential consequences of failure: ‘How do we get through the next three months? If you don’t settle, go to FDR, and a potential final hearing in six months, you’ve got a defended divorce here too. This began five months ago with collaborative law, mediation, counselling and is now (potentially) ending up in a final hearing. Will you continue to talk?’ The judge indicates how the parties might approach the wider matters in an FDR, and sends them out for discussion. On their return, they say the gap has narrowed, but agreement has not been reached. The judge now needs to make an adjudication. In discussion, the judge comments critically on the husband’s budget as set out by his barrister, and discusses his assets with him in much detail. One matter is the husband’s liability to a debt in favour of his father (a soft loan). The judge says: ‘I don’t see why dad has to be safeguarded to the detriment of the wife’s position’. He then engages in a similar exercise with the wife’s barrister, asking whether cheaper rented properties might be suitable. After some 90 minutes, the judge retires for 15 minutes, then returns and delivers an oral judgment making an order which essentially splits the difference between the parties, remarking that it was wrong that the wife and children should receive only two-thirds of the salary of the husband’s personal assistant ‘when we are not sure what she is doing’.

It seems surprising that the parties had not understood that neither had a winning argument, although both were represented and might be expected to have been   This matter is discussed more fully in ch 6, section III.B.iii.   This case is discussed in detail in ch 6, section III.C.

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encouraged by their legal representatives to settle along these lines between themselves. This case can be contrasted with Matter 19 which also involved splitting the difference between the parties, but where the judge succeeded in bringing them to an agreement. Matter 31 was a contested application by a local authority to remove a baby from its mother shortly after birth under an interim care order. The father had been charged with sexual offences against a stepchild, and the mother with complicity. Both were subject to bail conditions not to associate with each other or have unsupervised contact with any child under 16. The mother’s counsel (who is confident and middle-aged) argues vehemently that, whatever might be alleged against the father, there was no evidence that the baby was unsafe with the mother, and she should be allowed to stay with the child under monitoring because of the importance of bonding at this early stage. Counsel for the local authority is young and nervous. The Designated Family Judge engages sharply with the mother’s counsel and generally keeps the arguments moving forward, expressing the wish to finish the case today. The hearing lasts from 10.45 am until 3.30 pm, and the judge delivers a full judgment at 4.00 pm, granting the interim care order.

b. Scrutiniser Scrutiny is an important function as observed in the following four public law cases. Matter 1. The Circuit Judge’s only order at this hearing was issuing a witness summons to require the attendance of a man thought to know the whereabouts of the mother in this adoption case. This was instigated by the judge’s concern that a local authority was pressing ahead with adoption by pressurising the mother to sign the papers. The judge believed the mother was in a vulnerable position with concerns about her residence status, and should be heard. It is common in child care cases for the court to play an important role in planning the preparations for later hearings. This is considered further below.6 At this point we note that part of this process involves holding local authorities to account for their past actions, and also trying to ensure that they follow their responsibil­ ities as the case develops. For example, in Matter 4, a complex adoption case, described further in chapter six,7 the Circuit Judge was dissatisfied with the local authority’s efforts to obtain information about the child’s wider family abroad, which should be available to the child at a later date: ‘When you’re all gone, this child will come to this court. We keep the file. If the information is not here we will have failed this child. The child would be much more comforted to know that you have tried’. Matter 12 was another case arising on the expiry of an interim care order. The father and his new partner proposed themselves as carers for the child. The mother had not appeared, but was said to have consented to the adoption. In addition to   Seech 7, section III.   See ch 6, section III.A.

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planning for the later hearing, the Legal Adviser asked the Bench to flag up to the local authority the need to assure the court that the mother has been informed and given the opportunity to take part in future proceedings, as was her right. Scrutiny does not always involve criticism. In Matter 18, concerning a special guardianship order, the Deputy District Judge had previously asked for evidence of the mother’s consent, which was now provided, and was impressed by the local authority’s report, simply saying to the parties: ‘This is an open door. What orders would you like? How can we help you?’ As the proceedings progressed, the judge was actively involved in discussing with the parties’ representative the best and most practicable arrangements for visits by the children to their sick mother. c.  Authoritative Administrator Much of the work of the judge outside the courtroom involves routine administration, in particular with regard to listing cases. However, work that can reasonably be considered administration occurs in the courtroom as well, in the sense that the task is essentially the application of a pre-existing rule, or carrying out a formal procedure. There is no determination or other resolution of a dispute, but the act has legal consequences and the authority of the court is used to interpret and give effect to a rule of the court or to require other bodies to comply with their own rules. These included the following procedures: Matter 6 was the holding of an adoption ‘ceremony’. For the ceremony, the District Judge puts on wig and gown, and meets the family in the court room. The four-year-old girl being adopted is wearing her party dress, and a number of relatives are there to celebrate. The judge says kind and formal words, gives the child a card, and invites her on to the bench.

Darbyshire (2011: 275) also describes an adoption ceremony, the judge ‘gowning up’ for photographs, and giving the child a congratulations card. In Matter 13, the paperwork being completed, the Legal Adviser to the Family Proceedings Court read a declaration of change of name, also advising the mother to keep the document safely for future use if, for example, a passport were to be needed. Matter 15 involved setting a timetable for adoption proceedings in a Family Proceedings Court. The atmosphere was like an informal business meeting, but problems appeared at the end as the computer listing system was down. Matter 16 concerned ‘Mentions’, a procedure whereby ten minutes is listed to check that matters flagged up earlier are proceeding as ordered/agreed. This was performed by a Deputy District Judge. Matter 17 involved approving uncontested divorces. Any potential problems are identified in advance by clerks. One such was whether a translation for an Italian marriage certificate can be accepted as valid. This was straightforward administration by the Deputy District Judge, but involved an element of ‘judgment’ in that the clerk flagged up a problem and the judge found the solution in the translation on the reverse of the form which conformed to the required protocol.



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In Matter 33 the divorcing couple turned up (this is very rare) and the District Judge pronounced the decree nisi in their presence, and told them they could apply for it to be made absolute in six weeks’ time. The couple thanked him and left. Matter 47 was an unopposed application for enforcement of an order for the sale of a house, which was taken forward by the District Judge. Matter 41 was another change of name case, where the father, who was the applicant, had phoned in saying he was unwell. The discussion turned solely on finding a suitable time for the parties to attend on a later date. Matter 42 concerned the approval of a draft order about contact and residence reached by consent, with a later review by Cafcass. Having been satisfied that everyone, including Cafcass, agree, the District Judge comments: ‘If the two of you can agree together, that is better than my imposing something neither of you like. It looks complicated but if it works for you I will support it, if it works for your child. . . . Mr. A (barrister) it would seem sensible if the parties went away with an order’. The order is made by the DJ after this five-minute hearing, though the legal representatives had been in consultation in the café downstairs for an hour or more.

Matter 32. Eighteen months earlier, a plan had been approved for the adoption of a five year-old. The child had developed some behavioural problems, and the local authority felt an assessment was necessary as to whether the plan was still appropriate. No one objected. In Matter 39, the judge prepared himself by reading the papers for a potential hearing, which was called off as no one appeared. Essentially the judge managed his time as efficiently as he could, moving the business forward when appropriate. The same occurred in Matter 10. Matter 40. An order was made following up earlier directions in a care case. This took five minutes. Matter 34 involved the straightforward relisting of a case because the father had been recalled to prison and was not present.

ii. Management a.  Managing the Hearing Case management is a more recent development of the judicial role than adjudication or rule enforcement. This can be seen as an early element in the development of the helping role and indicates not only a move towards more efficient use of court time but is also of direct benefit to the parties whereby the judge guides a party in presenting his or her case at the time of the hearing. For unrepresented parties, this is vital, and will become more so after the changes to legal aid under the Legal Aid Sentencing and Punishment of Offenders Act 2012 come into effect in 1213 (see Ministry of Justice 2011a). Matter 11 was a case before a Circuit Judge between former unmarried cohabitants.8 The question was whether a non-molestation order should be extended   This case is discussed in more detail in ch 6, section III.B.ii.

8

88

Judging

while the man attempted to establish that he had an interest in the house, or an occupation order made in favour of the woman. He was represented, but the woman was not, although she was accompanied by a Women’s Aid support worker and a woman police constable. Children Act proceedings were expected to follow. Here the judge’s role expanded into what we have called ‘facilitation’, described in more detail later. It involved detailed discussion with the man’s counsel in a way similar to what one might expect from the woman’s counsel in a negotiation. The judge began drafting the order (for extension), suggesting ways in which it could be made clear for ease of enforcement. Anything that might give rise to dispute later should, if possible, be avoided. In this whole episode the judge not only acted virtually as the woman’s legal adviser, while also helping the man’s representative, but did so in such a way as to avoid adversarial conflict arising later and to reach a practical, agreed, outcome. The Legal Adviser in the Family Proceedings Court performs a multiplicity of roles, of which one of the most important is advising unrepresented parties before and during the hearing. This was performed in great detail in a contact application by the father in Matter 14, where neither party had representation.9 After introducing the parties, the Legal Adviser said: It is my job to assist you. I am also a solicitor and it is also my job to advise the magistrates on the law. My job is to assist you with procedure. If you need advice on your own position you should see your own solicitor. Today I will ask dad to outline his positions and what you are feeling. Then I’ll ask mum your position. If you agree . . . if not we go on to a contested hearing with evidence on oath and examination. Do you want to call witnesses? No. The magistrates have to give reasons in writing for their decision . . . we usually break from 1 to 2. Can you stay?

The case proceeded in this fashion. However, as the judge did in the case described previously, the Legal Adviser played a far more proactive role during the proceedings, going beyond management of the hearing to assuming the role of a facilitator. We have already referred to the concern of a judge to minimise the chances of disputes arising later. This was observed also in Matter 22, where a strong feature of the judge’s conduct of the hearing was his determination (which in the event proved unsuccessful) to steer the parties away from setting up a highly conflicted hearing over disputed facts at a later date. Both parents wanted all four of the children to live together, but the father wanted the residence to be shared because the mother lived too far from the older children’s school. The mother alleged domestic violence. The Deputy District Judge noted that some of the incidents described had occurred nine years ago, before the birth of the first child, and felt that seeking a finding of fact on these matters would impede progress to settling the arrangements for the children now. The judge was reluctant to give the parties a chance to rake up the past of an unhappy marriage, pointing out to the mother that, if the allegations were held to be substantiated, that would be important, but such a hearing also carried risks because, if not substantiated, she would diminish   This is discussed further at ch 6, section III.C.

9



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her position. The parties had been working well together in mediation ‘and this will end when you sit in that (witness) box over there’. The judge gave them more time to consider, but when they returned, the mother insisted on seeking a finding of fact, and this was ordered. b.  Managing Preparations for a Future Hearing Setting the framework for preparing a case for hearing was the most frequent activity observed. In private law cases, this is formally recognised in the procedure known as making an application for directions. Public law cases are covered by the Public Law Outline 2008 (Public Law Outline). Under this procedure, the court is required to set a timetable for completion as appropriate for the child who is subject to the proceedings (The Timetable for the Child), although specific periods are laid down for the earlier stages of the process. In an attempt to reduce delay, authorities are required to have taken certain measures before making the application. The subsequent process is broken into four stages. A First Appointment, to take place within six days of the application, would confirm the Timetable for the Child, check the care plan and give initial directions; there should be a meeting between lawyers and case management conference by day 45; a further lawyers’ meeting to resolve outstanding matters and prepare for the final hearing should occur between 16 and 25 weeks, and the final hearing should take place according to the Timetable for the Child (Pearce and Masson 2011: 28–33). This framework enables the parties to get together in advance of the hearing, seek any orders that may be necessary for assembling evidence, including expert assessments, and set a timetable. We have already noted that judges can use this opportunity to exercise a scrutiny function with regard to local authority actions. Three other features struck us about their approach. The first is the concern to focus on the interests of children. The second is their inclination to encourage, indeed sometimes almost push, people on paths that could avoid a later hearing. The third was a concern to ensure that every interested party should have an opportunity to be heard. Here are some examples of these features. Managing Preparations for a Future Hearing: Focusing on the Children’s Interests This role has already been illustrated in Matter 4 where the matter was seen as an illustration of the scrutiny role, but in setting out what needed to be done before a later hearing the judge was also managing the progress of the case. We will discuss in chapter seven persistent concerns over the time care proceedings can take to conclude. This is often said to be inimical to the children’s interests. But cases can be extended precisely because this is thought to be necessary to seek a better outcome for children. Matter 2 provides an example.10 This was a case management conference under the Public Law Outline regarding the long-term arrangements for three children who had been placed with their uncle and his partner. This had broken down, and a family group conference had been arranged by a   This case is referred to in ch 6, section III.A.

10

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Judging

private organisation to see whether alternative placements within the extended family could be made. The conference had not been very satisfactory, as there had been family tensions, and the judge was concerned that no note had been taken of its proceedings. The local authority was willing to explore the possibility of a placement with an aunt, but also to plan for adoption if this proved negative. The timescales for doing this were discussed, and the judge decided to order disclosure of what had occurred at the family conference. This case clearly had a long way to go, but it is difficult to see how this could be otherwise if the best options for these children were to be properly considered. Matter 27 was a case where a father was a heroin addict, and the children selfharmed. The matter was whether an order that the father not contact the mother, or go near the home or the school, or remove the children, should be extended. Social services had now made a report and expected to set up contact to see how it went. The Deputy District Judge observed that he was concerned with the children’s best interests, and on that basis was prepared to extend the order pending review of the case in six weeks. Matter 35 concerned a 12-year-old girl who had been living with her father, but whose mother applied for change of residence following a social services review consequential to complaints by the girl about chastisement by the father. The mother however had mental health problems. Arrangements for contact with the father (which had been suspended) needed to be made while social services prepared a report. The father wanted contact restored. The District Judge wanted this to be guided by the wishes and feelings of the girl. He also asked how social services were catering for her needs and her accommodation. He asked for a report on the child’s wishes to be made within four weeks. He told the father that this would be a long time for him, ‘but we need to handle this sensitively’. In Matter 28 the court was planning for what seemed likely to be a serious contact dispute. One issue was whether a witness summons should be issued to secure the attendance of a person who had expressed a view about what should be done. The judge thought this would further aggravate the conflict which would be against the children’s interests and declined to do so. Managing Preparations for a Future Hearing: Giving Space for Resolution Matter 45. In this long-running contact case, the eldest child was living with the father, and the two youngest with the mother. The father had taken drugs in the past, and had been exercising contact, but now sought a residence order with respect to the eldest on the grounds that he was no longer a user. The mother had been opposed to contact, but was now willing to allow some, but on a limited basis. Both parties were represented. Rather than engage in adversarial argument and attempt to settle details now, the District Judge fixed a hearing two months hence so that it could be seen how the temporary arrangements made for the school holidays worked out. While this might be seen as dragging things out, the tactic could also be viewed as seeing if matters could settle down without needing to impose a solution. The judge commented to the researcher outside the court-



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room: ‘I don’t want to wave a big stick . . . but the matter should remain under court scrutiny a little longer’. In Matter 24, a first appointment for a hearing regarding ancillary relief, only the husband and his solicitor were present. In the absence of information that would be provided by the wife on a Form E, the Deputy District Judge asked the solicitor for information about assets, and gave an opinion about what order a judge might make. This was clearly intended to head off a later contested hearing. He then ordered the case to go forward under the Family Dispute Resolution procedure. Matter 26 was a case where the father left the country before his daughter was born, but now, 11 years later, wanted to have contact. The child had treated her stepfather as her father, and there was suspicion that the father might be using the relationship for immigration purposes. The Deputy District Judge wondered if the stakes could be lowered: if the father wanted to know his daughter was well and happy, he would not need a contact order. He thought a hearing might be necessary, but on the other hand wondered whether a guardian might be able to forge an agreement. He urged the mother to agree on condition that the father made no contact with the school. While it seemed unlikely that this case would resolve without a hearing, the judge by referring the matter to the guardian, and indicating possible lines of agreement, might hope to postpone or reduce confrontation. In Matter 37 the parties wanted a change in their contact arrangements. There had been a report by a social worker on this. The District Judge reminded the parties that the arrangement could be changed by agreement between them, but if this was not forthcoming, there would need to be a full hearing. The mother wanted an independent report. The judge said he would consider this, and told them the matter would return to court in two months, and if they had not agreed, it would be set down for a full hearing. Managing Preparations for a Future Hearing: Ensuring Interested Parties Have a Right To Be Heard We have seen a court seeking this objective in Matters 1 and 12 by way of holding local authorities to their obligations to give mothers proper notice, and this occurred in the context of detailing what needed to be done prior to the later hearing. It also occurred in Matter 46. The mother, carrying a baby, appeared with her new husband. Her child, by her former husband, had been in boarding school, but the arrangements for contact with the father had become unsettled because of the father’s relocation. The school wanted clarity. The father was not present, and the mother asked for a temporary order to give stability to the child, whose examinations were imminent. The judge says he understands and suggests a solution. ‘Your ex says he can’t come to court today. I want to set a date in a few days’ time. On the next occasion I will consider making an order that your daughter will remain as a boarder until (gives date). If the father chooses not to attend, he can’t complain. If he does, he can put his case. We may even want to see your daughter’. The judge lists for two weeks’ time.

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Judging

In Matters 10 and 34 the judge had to relist as the applicants were in prison, one recalled and one delayed in arriving by prison transport, and in Matter 41 a change of name application by a father was postponed because he could not attend as he was unwell. The process was purely administrative. In Matter 8 the case was adjourned to give the father time to respond to a change in circumstances. Ensuring All Obtainable Evidence Will Be Available This is a routine task in such hearings, but sometimes it can take a less usual turn. In Matter 9 an adoption order had been made in a foreign country, and approved in this court 10 years ago, but a new adoption order was needed as the foreign one was not recognised. The Circuit Judge made an order for the Home Office (which had been tardy) to complete its procedures so that the adoption could be made, and set a date for the adoption ceremony. The court was using its authority to bring pressure on a public body to enable a procedure to go ahead.

iii. Help a.  By Providing Information The ways of managing cases described above were clearly helpful to the court in moving the matter along while respecting the position of the parties. But in some cases judges moved even further away from the passive role of hearing evidence before making a decision towards offering positive help to parties through providing information, though being careful not to present this as advice to one side or the other. Matter 23. The researcher was told firmly by one Deputy District Judge outside the courtroom: ‘I can only give information, not advice’. While we accept that this may seem an important distinction in the eyes of a judge, the dividing line between providing information and advice can be a thin one. Well-targeted information can virtually amount to advice, and in some cases the advice seemed overt. The remark was made in connection with a case where a husband, who was not represented, was refusing to complete the sale of a house that had been ordered in a prior hearing, largely because he thought that the offer was too low. He was therefore understandably concerned about the sale, but equally he was obliged by the previous order to make it. There was discussion between the judge and the husband about the housing market, between the judge and the wife’s solicitor as to whether it might be better for her to wait for a higher offer, and some admonition to the solicitor about costs. The husband was unhappy with the original order, and the judge found himself ‘informing’ the husband of what he needed to do if he did wish to challenge the level of maintenance or the shares of the sale of the former matrimonial home, adding that the barrier to be crossed if an appeal was to be successful was a high one and that he would find himself subject to costs and damages if the associated delay were to result in the buyers pulling out and a subsequent sale were to go through at a lower price. While it seems this husband was determined to appeal, and the judge recognised his right



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to do so, the husband could not have failed to be aware that the judge considered this to be unwise. In Matter 25 a wife (unrepresented) from an African country, long separated from her husband, claimed that he had been married when she married him, and sought a nullity decree. The husband, who was not present, claimed the marriage had been dissolved in the African country. The Deputy District Judge, aware of the complexities (and costs) of nullity proceedings, said to the wife that she was young, it was a mistake, and asked why she did not just divorce him? The wife was not persuaded by this clear judicial attempt to head off costly, adversarial, litigation, and intimated that the husband’s proffered divorce decree was a forgery. The judge, explaining the difference between divorce and nullity, asked: what she would like him to do. She insisted that she wanted a nullity, so the judge suggested (which must have felt like advice!) that she write to the foreign jurisdiction to obtain evidence. Matter 44. The most remarkable example of judicial assistance (but also of judicial recognition of its limits) occurred in a case of an elderly woman who also needed to sell her house as a result of a court order made a year earlier, but was finding it difficult to move and was unwilling to complete the sale. She had been taking advantage of the judge’s earlier comment (which he now regretted) that his ‘door was always open’ to get him to postpone the sale. She was in tears. The District Judge says: ‘Last time you were here I phoned the estate agent and asked about completion at (at a later date). I am in no position to dictate the date of completion. There are other people involved who are not part of the proceedings. I advise you to go back to your solicitor to get a later completion date’. The judge clearly feels he could do no more: ‘You are in charge of your affairs. Talk to the purchasers today. I am not ordering you out of the house; it’s for the purchasers to get you out. I am not going to do anything unless someone puts in an application. I invited you in to tell you I can do no more and because you came all the way from XX. You have had five months to pack. You could have made a start. I am not here to act on your behalf’.

In Matter 38, during a complex case with child protection concerns, where the father was not represented, the question arose whether the decree nisi should be made absolute. The father had resisted this, thinking it was necessary to finalise financial matters first. The District Judge assured him that this was not necessary, and, while remarking that he could not ‘advise or influence the parties’, said he could not see it would have any prejudicial effect. The father said he would like the divorce finalised, and the District Judge told him how to take this forward. b.  Facilitating an Agreed Outcome This role has been seen earlier, in Matter 11, where the Designated Family Judge (a Circuit Judge) not only assisted an applicant in presenting her case, but also engineered a solution to the problem. Facilitation of agreement turned out to be a very significant judicial role in the matters observed. It was particularly well

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illustrated in a complex case (Matter 7), described in more detail in chapter six,11 of a break-up in an unmarried relationship between parents from different EU countries, with a child of eight still living in the house. Both parties were legally represented (the mother on legal aid). One set of matters revolved around the house, which was in joint names, and of which the mother sought over half the equity. Discussions took place in the District Judge’s chambers. There the judge was engaged in continuing and detailed discussions on matters ranging from financial issues to practicalities about ways of distributing the contents of the home and how the child might be best picked up from school causing least disruption to the child. Eventually counsel withdrew, and returned two hours later with a draft consent order. Financial matters had not been completely resolved, as that required a separate application and draft order once this order has been made. That was agreed. After some more questioning by the judge, each party signed the order. In Matter 18 the children were with a foster carer owing to the mother’s terminal illness. There had been an earlier order, now lapsed, regarding the older of two children, and the foster carer needed a contact order so that the local authority could cover the cost of the younger child visiting the mother, who lived some distance away. The content of the order was discussed. The Deputy District Judge noted that the older child made her own decisions about visits, and the younger, who was 12, was close to reaching that stage. The judge did not think this was best resolved in court, and did not want the matter to come back. The judge went into the practicalities of travel, but felt the case should be dealt with in conciliation. There was essentially no dispute, since the object of the application was to obtain an order that had the effect of authorising the local authority to pay for the visits. All that needed to be settled were the details. The judge suggested that the foster mother would explain the practical difficulties to the local authority, and the authority should propose ways they could help resolve them. In the meantime, to avoid further proceedings, the judge asked the solicitor for the foster carer to draft a ‘reasonable contact’ order on terms to be agreed with the local authority, offering to sign an order at lunchtime if a draft was prepared. Matter 5. In this case, described more fully in chapter six,12 the child was living with the father, but at some distance from the mother, so contact with the child’s mother was difficult and expensive. Cafcass wanted an order that contact take place in the father’s locality, but the father’s barrister, and the judge, were worried that the mother (who was not present or represented) might not be able to manage this, and fall into breach of the order. He preferred to make an order for contact as agreed between the parties, and that Cafcass should explore (over lunch) the availability of contact centres in the father’s locality. They did so, and with this new information, the judge made the order he had proposed. The judge’s firm intervention from the perspective of the mother, who was not even present,   See ch 6, section III.B.i.   See ch 6, section III.A.

11 12



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avoided an order that might simply have caused further litigation, and produced one which was more conciliatory and pushed Cafcass into a more constructive endeavour. Since Financial Dispute Resolution proceedings are designed to achieve agreement, it is not surprising that the judge will act as a facilitator in this context. In Matter 19 the barrister for the husband began by announcing that the gap had been narrowed, and explaining what had been agreed thus far, and the wife’s counsel provide further information. The Deputy District Judge asks a few questions for clarification, and then identifies the point of difference, which concerned the asset split: ‘You are £7,000 apart’. He observes that the starting point is 50 per cent, but the assets were small, and ‘need trumps’. To provide the wife’s needs would consume almost all the assets. The judge notes that the wife has no earning capacity and young children, and wonders why there should be a clean break. He suggests that this is a case where there should be a nominal mainten­ ance order, and offers neutral evaluation. It would be different if the youngest child were 10 years older. There was a ‘soft’ loan from a family member to take into account: the judge wonders whether this should be treated as an asset or a debt. He comments that the husband’s larger pension pointed to a smaller share for the husband, but his potential liability to pay child support meant it should not be reduced too far. The judge concludes that he cannot help more than he has done, and urges the parties to settle. The parties go out. Later they return to say they had agreed to split the difference and settled.

In another Financial Dispute Resolution proceeding (Matter 21) the wife was seeking £1000 pm maintenance. She was represented by a barrister, and the husband by a solicitor. The judge calculated that the wife’s income was only £100 pm less than the husband’s, but the wife’s barrister challenged his disclosure. The Deputy District Judge pressed the husband to explain why his payslips showed reducing income. The judge remarked that the wife could not succeed on the basis of the disclosed figures. He cut short pursuing suggestions that the husband was not paying rent, and focused on the money paid in child support. While he was concerned about the amount the wife was claiming, he also noted that they needed to recognise that she was ‘struggling to work five days a week’. He then did further calculations, reaching a range of between £260 and £360 which he thought the wife should receive. He did not accept that it should be £1000, saying he thought the wife had been dominated by her ‘feelings’. But she needed to revisit the child support payments. He also referred to some practical matters, such as what documentation the husband needed to hand over. He concluded that he had given early neutral evaluation for a three-year order, and asked for heads of agreement within 24 hours. The parties agreed and left. In Matter 29 a father had threatened to kill the children and burn down the house. He was represented, but the mother was not. The mother wanted to be sure that the father would not take the children away from her. She felt she needed protection and was unhappy about contact. The Deputy District Judge clarified how this might be reflected in an order and, with agreement of both, suggested an

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order that the father should stay away from the mother, not remove the children from her, but have contact supervised in a contact centre for ‘an hour at first and then building up, because it is the quality of the time that matters’. The parties were content with this, and the judge invited them to draft the order. Matter 36 was a contact case where both parties were represented, and the Official Solicitor was involved. The father’s suicide attempt had left him brain damaged, with erratic behaviour, causing problems over contact with his 12-yearold daughter, who was uncomfortable about seeing him alone. Contact had been indirect, but now the father wanted direct contact. The father’s counsel suggests that contact might be arranged twice a year and built up. The District Judge says he has received a letter from the daughter. He asks Cafcass whether the mother was being co-operative, saying he wanted to avoid a hearing, but that he could not prevent it if counsel wanted one. He adds: ‘I would need some powerful evidence to form a view other than that expressed by mum and Cafcass. I am moved by the letter from the daughter: she wants it resolved’. The judge suggests practical details regarding indirect contact (dates when photos and letters should be sent to the father) and two visits of two hours twice a year, ‘maybe also a Christmas visit?’. With a request that the local authority send a social worker to explain to the daughter, the father’s counsel drafts the order in those terms which the judge signs and all exit, smiling.

Matter 43 had started in an earlier contested hearing, in which residence of two children had been granted to the mother, with defined contact to the father. The mother had relocated and the father, who was not represented, applied for a revision of the order, asking for shared residence. The difficulty was caused by the geographical distance between the parties, making contact on the terms originally set out impracticable. The father wanted the children to spend some time with him at half-term. The judge said that this seemed to reflect the children’s views and to be ‘worthy of merit’. He added: ‘There should be enough goodwill to resolve this. If not, I’ll hear evidence from both parties and resolve today’. After a break, the parties had still failed to agree: there was dispute over three days. The judge said that if they could not agree, he would divide the remainder of the summer holidays equally. The mother agreed this was fair, but had problems about picking the children up on a weekday. The judge said, robustly: ‘They are your children. Sort it out. Will you draw up an order?’ They agreed. In Matter 14, an application for a contact order by a father before the Family Proceedings Court, neither parent was represented. The proceedings were conducted by the Legal Adviser (LA). The father complains that his contact has been reduced from what was agreed earlier, and he wants it restored. The mother says she wants it better regulated to take into account the child’s changing life patterns as he gets older. She says she wanted mediation, but the father did not. The LA asks whether they had spoken to Cafcass, and they say this had been unsuccessful. The LA asks them to narrow down the matters, and points out that if an order was made, there would be a warning and enforcement notice attached. The father is adamantly against any reduction in time, and the mother retorts that it was about what was best for the child, not the father. The Chair of the Bench asks



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whether it was better for the parents to decide when to see their child or for three strangers to do this. The father replies that he thought they needed someone to tell them, but agrees it was about the child’s interests. The father now gives evidence, stating his case for resuming the original schedule. The LA goes into details of how it works, saying: ‘I’m trying to mediate here’. Then the LA asks if the mother wishes to question the father, which she does, making further suggested changes. The LA advises them not to look too far ahead: if things work out, they can move on without the need for a court. This strategy seems to work, because, having withdrawn, the parents return with an agreement.

In this case the parties felt they needed the arrangements to be set out in a court order so as to prevent future dispute between them, and the court helped them reach an agreement.

E. Reflections Darbyshire (2011: 262) commented from her observations that the family judges were ‘frequently interventionist’, sometimes manipulating proceedings ‘to achieve their chosen outcome’, adopting the role of peace-maker and readily slipping into the informal role of ‘negotiator, mediator, conciliator or, indeed, scold’. We see this as another way of describing our category of ‘facilitating an agreement’. Some of the observations recorded by Darbyshire closely mirror ours, such as her description of a judge who asked the parties: ‘You don’t want to fight in this case, do you?’, frequently sending them out to negotiate (Darbyshire 2011: 267), or of a judge being inventive in finding ways of keeping a couple out of court to encourage them to negotiate (Darbyshire 2011: 282). Darbyshire’s (2011: 269) description of a judge ‘animatedly dictating a contact order in minute detail, interrupting himself to negotiate with the parents about mobile phones and transport’ looks very similar to the behaviour of the judges our Matters 11, 7 and 34 where the judges tried to ensure that practicalities were dealt with as far as possible at this stage, so as to reduce the chances of disputes arising again and the parties returning to court. To some extent, the family judges were modern equivalents of the nineteenth-century magistrates described earlier,13 especially where parties had been unable to acquire assistance from a lawyer. Darbyshire (2011: 263, 266) noted that the judges considered their paramount duty to be to uphold the interests of the children involved: ‘Where parents were self-interested and vindictive, judges reminded them that their children’s interests were paramount, often in strong terms’. We observed this as well. We also recognise the general attitude of the judges as ‘trying to move the case forward’ (Darbyshire 2011: 279). The judges spoke of themselves as ‘moving matters along’, and ‘making a case decidable’ within the law, often represented by the Children Act 1989, where the court has a duty to give paramount consideration to the welfare of the child concerned.   See ch 4, section I.

13

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However, we strongly disagree with Darbyshire’s description of family courts as being a ‘law-free zone’ (Darbyshire 2011: 289). This may be a matter of interpretation rather than description. It is true that family judges seldom need to decide points of law, as other civil courts may need to do more often, and that they are reluctant to resolve what often seem to them to be personal squabbles. Yet the law permeates the family courts in unseen ways. The first is in the authority of the judge himself or herself. The admonitions delivered to the parties, including lawyers and local authority officials, carry weight because the judge speaks with the authority bestowed by the law. The law is also present through observance of courtroom procedures. These may be more flexible than in other branches of the legal system, especially in the more interventionist (or inquisitorial) manner of the judge. But the presentation of and debate over such highly charged subject matter would be impossible without ground rules, and the authority of the judge. Mervyn Murch, who has observed the family justice system in England and Wales over many years, places a great deal of weight on this feature of family justice, arguing that, especially in the more conflicted cases concerning children, the symbolic authority of an impartial judge was significant in exerting a ‘containing and restraining influence’ which is important in the ‘search to restore or discover a new equitable equilibrium in the families’ relationships’ (Murch 2012: 123–25). The judges also always operate within the legal framework. We have seen how they maintain the requirement of the Children Act 1989 that the children’s interests must be placed first as the standard against which claims must be evaluated in cases involving children. We have also seen how the judges endeavour to hold local authorities to the procedures prescribed by law, and, as an examination of their judgments in chapter seven shows, their scrutiny of local authority interventions is of supreme importance in ensuring that the state’s interventions into family life remain within the limits set out by Parliament and the human rights legislation. But even in the process we have called facilitation, for example Matters 18 and 21, judges made use of their knowledge about how such disputes were likely to be eventually decided in pushing parties towards agreement. In terms of our initial analysis of family justice, where we drew attention to the tension between ‘behaviour-focused’ and ‘outcome-focused’ approaches, we would maintain that when a judge acts as a facilitator, and also in a helping role, the judge reconciles this tension. The significance of the outcome remains in focus, but, unless it cannot be avoided, the judge will not seek to impose this in the teeth of opposition. By facilitating agreement, the judge guides the parties towards the outcome envisaged by the law, exercising judgment as to how much latitude the parties should have in fashioning their own solutions. But the analysis also shows the extent to which the roles played by the family judiciary in the lower courts in England and Wales already follow the aspirations of the reformers of the Family Court of Australia when they sought a ‘less adversarial trial’,14 and those of   See ch 4, section IV.B.

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99

the Family Justice Review, which required judges to take more control over the progress of each case and to engage more directly with the parties or their representatives. The judges we observed frequently spoke directly to the parties. To that extent we could describe the process as ‘inquisitorial’, though such labels are not always helpful, because in some matters, in particular the finding of fact hearing in public law cases, the judge’s role would follow more closely that of the ‘umpire’ in an adversarial setting. In this matter too, then, the family judges are reconciling, or integrating, judicial roles. Lest it be thought that things might be different in an ‘inquisitorial’ continental European system, research similar to ours involving examination of documents and observation of proceedings conducted by family judges (juges aux affaires familiales (JAF)) in tribunaux de grande instance (TGI) in four French towns in 2009 came to startlingly similar conclusions. (Centre Maurice Halbwachs 2010). On the basis of observing 330 cases, the researchers concluded: L’image traditionelle de la position du juge est celle de l’arbitre tranchant les désaccords entre conjoints ou ex-conjoints à l’aide de la loi. En fait, cela n’est pas toujours si évid­ ent. Dans la pratique quotidienne des judges, il s’agit de jouer le role d’arbitre, mais aussi de repérer les points non-litigieux entre conjoints voire de ‘susciter des points d’acccord’ pour ne pas avoir à trancher.15

Unlike the position in England, a large part of the judges’ work concerned deciding whether non-payment of child support was excusable through ‘impecuniosity’, as this was needed before social security payments could be made for the children, and this largely involved tracking down documents about earnings, a largely administrative role that the judges found uninteresting. But it also involved settling disagreements over the proper amount to pay, and in doing this the judges were mainly concerned with getting the parties to agree, and seemed content with any agreement they reached. Among a number of examples given, the most striking was where a judge indicated that he thought the wife’s request was reasonable. The man, who was much bigger than the woman, and seemingly slightly threatening, seemed to agree with this, and they were sent out to discuss this. When they returned, the woman announced they had agreed a very much smaller sum. The judge simply confirmed this, and said to the researcher, when they left: ‘He negotiated better than she’ (Centre Maurice Halbwachs 2010: 103).

15   ‘The traditional image of the judge is that of an arbitrator deciding disputes between spouses and ex-spouses with the help of the law. In fact, that is not always so clear. In their daily practice, it is about acting as arbitrator, but also about identifying non-contentious points in order to reach heads of agreement so as not to have to make a decision.’ (Centre Maurice Halbwachs 2010, 57, our italics.)

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Table 5.4  Table of matters, with role, status of judge and time spent Issue No 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

24

25 26

Time (minutes) 30 180 120 180

Role Scrutiniser Managing preparations Umpire Scrutiniser & managing preparations Facilitating agreement Administrator

Nature of Matter Adoption Care Care Care and adoption 90 Contact 15 Adoption ceremony 60 Facilitating agreement Residence and finance 30 Administrator Contact 90 Managing hearing Adoption Case suspended Administrator Special guardianship order 90 Managing hearing & Non-molestation facilitating agreement order 40 Scrutiniser & managing Care preparations 10 Administrator Change of name 70 Managing hearing & Contact facilitating agreement 20 Administrator Adoption 10 Administrator Mentions 10 Administrator Uncontested divorce 20 Scrutiniser & facilitaContact ting agreement 60 Facilitating agreement Financial 150 Adjudicator Financial 60 Facilitating agreement Financial 40 Managing hearing & Contact managing preparations 40 Providing information Property & facilitating agreement 15 Managing preparations Financial & facilitating agreement 25 Providing information Divorce/nullity 30 Managing preparations Contact

Status of judge Circuit Circuit Circuit Circuit Circuit District District Circuit Circuit District Circuit FPC FPC FPC FPC District District District District District District District District

District

District District



The Empirical Evidence: Judges at Work 27 28 29 30 31 32 33 34 35 36 37

30 40 45 240 300 30 5 5 25 35 15

38

45

39 40 41

15 5 30

42 43 44 45 46 47 48

10 45 20 60 40 5 80

Managing preparations Managing preparations Facilitating agreement Umpire Adjudicator Administrator Administrator Administrator Managing preparations Facilitating agreement Managing preparations & Facilitating agreement Providing information & managing preparations Administrator Administrator Administrator & Managing preparations Administrator Facilitating agreement Providing information Managing preparations Managing preparations Administrator Umpire

101

Contact Contact Contact Care Care Contact Divorce Contact Contact Contact Contact

District District District Circuit Circuit District District District District District District

Finance/Divorce

District

Residence Care Change of name

District District District

Contact Residence Property Contact Child issue Property Non-molestation

District District District Circuit District District FPC

6 Family Courts in Action In chapter five we showed that the roles played by the family judges we observed in dealing with the matters brought before them essentially fell into three categories: legal activity (hearing and testing evidence prior to adjudicating, scrutinising the work of others and interpreting and applying existing rules); management (both preparing what would be required for a hearing where a determination might be made and managing the process of a hearing) and helping the parties reach fair and lasting agreement through the provision of information and support or by reducing the amount of adjudication needed. The adjudicative role is the traditional core of judicial activity, but in terms of the number of occasions when it was exercised in relation to the matters that came before the courts, it comprised less than one in ten of all roles observed. The managerial element in judicial work is known to be increasing, and a third of all the roles we observed were of this type. But what was most surprising was the amount of time spent by the judiciary in helping parties through providing information and generally facilitating the move towards an agreement in a way which seemed closer to the current practice of dispute resolution as practised outside the courts (ADR): just under a third of all roles observed (see Table 5.2). This analysis of the roles undertaken by family judges suggests the need for a significant reassessment of the nature of family justice. We can see that, contrary to common perceptions, there is no bright-line, sharp, divide between what judges do and what legal or other professionals do in cases of family conflict, although the fact that what is done is performed by a judge makes a qualitative difference because of the court setting and the authority of the judicial office. However, we need to press our examination of the system further and see how these roles are located and distributed in the family court system. This is important because, as mentioned in chapter four, the Family Justice Review proposed that a single family court, with a single point of entry, should replace the current three tiers of court, that all levels of the family judiciary (including magistrates) should sit in the family court and that work should be allocated according to case complexity (Review Panel 2011: para 36). It also wished to encourage a larger degree of judicial continuity in dealing with individual cases (Review Panel 2011: para 2.126) and the specialisation of judges and magistrates in family matters. This approach was accepted by the government (Ministry of Justice and Department of Education 2012: 44) and the Crime and Courts Bill 2012 states that there will be a court in England and Wales called a ‘family court’. Other

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aspects of the recommendations will be implemented in the Children and Families Bill introduced early in 2013. In this chapter we will therefore provide a more detailed examination of the working day of the family judges, including the different kinds of matters being dealt with, the different court settings in which they occurred, and the approaches adopted in the respective courts. In this way we can compare the characteristic way business is conducted by Circuit Judges, District Judges and in the Family Proceedings Courts by a Lay Bench with the support of Legal Advisers.1

I.  Roles Played, the Nature of the Court and the Nature of the Matter The analysis in chapter five ascribed two roles in some of the 48 matters observed, yielding 59 role occurrences. To avoid over-complication, for the purposes of this chapter we have selected only one role as the dominant role in each of the 48 matters observed. Of these 48 matters, 11 were heard before Circuit Judges, 32 before District Judges and five in the Family Proceedings Court (see Table 6.1). Twelve were public law matters (including adoption, as this followed a care order), 23 were private law issues regarding children and there were 13 other ‘ancillary’ issues related to divorce (see Table 6.2). There were 24 matters where legal activity dominated, 13 where case management was the dominant role, and 11 where the judge’s primary role was actively helping the parties to reach agreement.2 Table 6.1  The dominant judicial roles observed according to the nature of the court in the 48 matters observed Role Legal Management Help Total

Circuit Judge 6 4 1 11

DJ or DDJ * 14 8 10 32

FPC** 3 1 1 5

Total 23 13 12 48

*District or Deputy District Judge **Family Proceedings Court The District Judges stand out as those most frequently involved in helping and facilitating the progress of cases. This was the dominant role in nearly a third of the matters they dealt with. Circuit Judges and the FPC, however, performed ‘legal’ activity in over half of the matters they were seen to handle, and to offer help much less often. Table 6.2 shows the nature of the matters in which these roles were performed.   We did not observe a District Judge working in a Family Proceedings Court.   This breaks down to: legal activity 50%; management 23%; help 27%. This compares to legal activity 40.7%; management 30.5%; help 28.7% of the 59 role occurrences described in ch 5. 1 2



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Table 6.2  The roles adopted by judges according to the nature of matters dealt with in the 48 matters observed Nature of matter Public law children (including adoption) Private law children Divorce ancillary issues Total

Legal activity 10

Management 2

Help 0

Total 12

9 5

9 2

5 6

23 13

24

13

11

48

Clearly public law cases, usually involving local authority interventions into children’s and parents’ lives, required firm legal direction, whereas there was more scope for assistance and facilitation where the subject matter involved financial arrangements. The private law children matters appeared to require a great deal of managerial work. This may be because it can take time for acceptable arrangements for children to evolve, especially as circumstances change, and the court performs an almost supervisory and supportive role in working towards a stable solution, taking into account the need to vary arrangements over time as the child gets older or other circumstances change. We expected that different kinds of matter would be dealt with by different branches of the judiciary, and indeed this was the case. Of the 12 public law cases, seven were heard by a Circuit Judge, three by a District Judge and two in a Family Proceedings Court. Of the 23 private law children matters, only three went to a Circuit Judge, two were before the Family Proceedings Court, and the remaining 18 were handled by a District Judge. Of the 13 divorce-related ancillary matters which were mainly financial, 11 went before a District Judge and one domestic violence matter was heard by the Family Proceedings Court and one by a Circuit Judge.

II.  Time Spent According to Matters Dealt With In the previous chapter we noted that the amount of time spent performing the various roles did not match the frequency with which the roles were performed, for the obvious reason that the work undertaken while performing some roles took longer than others: for example, ‘umpiring’ a contested public law case took longer than the administrative role of reading out uncontested divorce decrees (Table 5.3). We also observed that this mismatch between the time taken in certain roles and the wide variety of roles exercised may contribute to the prevalence of serious misperceptions about the nature of the judicial role in family cases, in that the impact of the more frequent but shorter items of work may be underestimated.

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We now look at the time taken according to the nature of the matter being considered by the court (Table 6.3). Table 6.3. Number of matters heard according to nature of matter heard and time taken in the 48 cases observed Nature of matter Public law children Private law children Divorce ancillary matters Total

Up to 15 minutes 3 6 4 13

16–60 minutes 3 15 7 25

61–120 minutes 2 2 1 5

Over 120 minutes 4 0 1 5

Total 12 23 13 48

A third of the public law children matters took more than two hours. Almost all the private law children cases and divorce-related ancillary matters took less than an hour. Of course these findings must be treated with care, as different kinds of hearings were in progress. But the differences are quite stark and worthy of further investigation. It seems that hard public law care proceedings involving witnesses, testing of evidence and many parties take time, even at the planning stage, whereas keeping a contact matter ticking over towards a comfortable outcome takes relatively little time per session, and negotiating financial matters can often be swiftly progressed by a skilful judge.

III.  The Daily Work of Family Law Judges in the Lower Courts We will now present in some detail the daily work of a Circuit Judge, a District Judge and a Legal Adviser in the Family Proceedings Court to explore the themes identified above.

A.  The Circuit Judge We look first at the daily work we observed of a Circuit Judge. This included dealing with child protection, adoption and a difficult contact case. This account begins with a complex care case with a difficult and far-reaching decision to be made in changing circumstances, necessitating facts to be checked to ascertain whether an order should be made, and judgement exercised over planning for the children’s future. This required scrutiny of the work of hard-pressed support services. In doing this, and in the difficult contact case dealt with by a second judge in the same court, the judges were putting the welfare of each child first, whatever the problems experienced by others. The application by the Bench of



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the welfare paramountcy principle underpinning the Children Act 1989 is clear and consistent. The court was a busy Midlands county court which has a Care Centre, a Family Hearing Centre, an Adoption Court and a Family Proceedings Court. At that time (2010) the court offered five High Court days (when a High Court judge was present), 372 Family Circuit Judge days and 535 District Judge days a year. Most private law cases were taken by the District Judges. Over half the care cases were being completed within the 40-week target period,3 and First Directions and Conciliation Appointments with Cafcass were being used successfully. Thirty final care orders had been made in the previous year (two-thirds of these had transferred in from the Family Proceedings Court) and thirty adoptions were completed. The first Circuit Judge to be observed was an experienced judge, with an enthusiastic court staff and extensive local knowledge of the community being served. This included a large ethnic minority population. Behind the scenes, the Family Team Manager at this court reported dealing with attachment of earnings, manning the counter service, clerking, dealing with transfers from the Family Proceedings Court to the county court, and coping with increasingly complex procedures. For example, the new C100 form for a contact application is longer and more complex than the old C1 form and their postal bill was already over £1000 a week. Paperwork had been 20 days behind schedule, so staff had come in over the previous weekend to make inroads. Listing was currently three months ahead. Overall the picture was of a busy court, parties who made many demands and failed to keep to arrangements made, and overloaded social work and Cafcass staff. The account which follows indicates that only the judges were in a position to stand back and unequivocally put the child first. The researcher met Judge A at 8.30 on the Monday morning. The judge was reading papers in a large pleasant room with papers, chocolates and toys on the table. The case listed was the first day of a five-day final care hearing. The guardian’s report had not arrived as the guardian had been off sick, but she had indicated that she would support an alternative to the plan for adoption put forward by the local authority the previous week. The guardian would argue for the two youngest children to stay with their foster carer. The father wanted to have the children but he had mental health issues. The mother opposed this, but she had a history of relationships with abusive men, including her current partner. The case had begun as a contact dispute, but social services had become involved when there was a non-accidental injury. The judge’s self-description was of an interventionist, not necessarily popular with the local authority. This judge liked the idea of these children continuing with the foster parent who supported parental contact, shared the children’s ethnic background, and had supportive adult children living nearby. In the judge’s view, the local authority could apply for long-term fostering or a special guardianship order, but was so short of money that it found adoption attractive because if an adoption was effected, there would be no need to   This is discussed in ch 7, section III.

3

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pay the fostering allowance or offer much by way of social work support or reviews. The judge’s clerk came in with the report, saying that the guardian was questioning whether the social worker was acting in the best interests of the child. The guardian’s report finally having arrived mid-morning, the judge had relisted the case for the afternoon, bringing forward an adoption case in its place. In this case (Matter 1) the guardian’s representative opened by saying that he had not managed to locate the mother. Both parents were from the Caribbean and had overstayed their permission to reside in the UK. Cafcass had visited an address and asked a gentleman living there, who had a church connection with the mother, for her address, but he claimed not to have any information. The judge was not convinced and issued a witness summons for this man. The judge did not want to frighten the mother, but did have a duty to inform the Home Office of her address. The judge noted that adoption hearings have no court bundles, so notes from a previous hearing might not be available. At 11 am the parties in the final care hearing to begin that day, listed for five days, asked to seek the judge’s views before proceeding (Matter 3). The representatives for the local authority, for the mother and father, and for the guardian herself and the social worker came into the court. The local authority argued that the threshold for intervention had been established (that is, that there had been or was likely to be significant harm) and that only disposal, the care plan, was in issue. But the father contested this and wanted to be heard on his request to have the children. Witnesses were available for the hearing as listed, including the social worker, psychiatrist, independent social worker and guardian, but two (the psychiatrist and the independent social worker) would not be available for another two days. The care plan had been made four months ago and still held to some extent. The guardian accepted the value of certainty in adoption, but was also considering whether the boys should stay with their long-term foster carer under a special guardianship order. The local authority wanted time to reflect and discuss with the adoption team. The guardian’s lawyer asked if the judge would like to deal with threshold issues and postpone disposal so that a further assessment could be made of the foster carer, but timing was difficult, as witnesses would be needed. The father’s lawyer would like to postpone until the foster carer was assessed. The guardian said there was sufficient evidence that the father could not look after the children and therefore she preferred an immediate reduction in contact. The judge said that these proceedings had been going on for a long time and the case was listed for five days, experts were expecting to come in two days’ time and needed to be heard in order to decide the father’s contention. The local authority requested that the social worker be heard today. The judge replied that the list was no longer clear, but they could come back at 2.30 pm. To the observer it appears that the decision in any child protection case must be made with great care, that many small items of information are needed from a number of people, and the judge’s ability to move the case forward is limited by the failure of others to complete their work. But collecting information takes time, and it must then be verified, tested and made available to those who need it.



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In this case only the judge seemed to be free to ensure everything possible was done in the best interests of the child. Everyone else involved seemed to be dominated by targets and financial constraints. The hearing did not appear in any way adversarial. The judge appeared to be acting in an inquisitorial way, and directed entirely by the Children Act 1989. At 12.00 the judge returned to chambers to deal with paperwork, reappearing in court at 12.35 for a case management conference relating to a final hearing listed in three months’ time (Matter 2). A placement with an uncle and aunt had broken down, and a family group conference had been called to look at the difficulties. But the uncle had refused to allow some family members to attend. There was no summary or note of the meeting, and the social worker reported that the conference practitioners had refused to allow a note to be taken, and did not allow disclosure of what happened at the meeting where the social worker was present. The judge was critical of this costly and secretive procedure and made an order that the organisers must produce a note of the meeting. The judge pressed the local authority on the timing of its plan, and was clear that an assessment needed to be made of an aunt who had come forward as a potential carer. The hearing ended and the case was to return when further information became available. The judge took a sandwich while continuing to work. By 2 pm the parties were ready for the final hearing postponed from the morning (Matter 3) and the social worker gave his evidence. He did not think the children should return to their father and thought they were settling in well with the foster carer. There had been a brief period when the father had tried to change, and the social worker accepted there was a strong bond between him and the children, but did not think that the father was able to care for all three. But the social worker agreed to support the father’s request to be assessed for his suitability as carer and the hearing ended at 4.30, to be resumed in two days’ time. A care order could then be made, though the terms of the care plan would depend on the assessment of the foster carer as a guardian. It may not have been irrelevant to the local authority that foster care costs for the two children were £350 per week, while the Special Guardianship Allowance would be £150. So a day listed as the first day of a five-day final care hearing turned out to be a complex interweaving of three hearings: an adoption case requiring a witness summons, care plans being reappraised in a case management hearing, and forensic questioning of a witness in the case originally listed for that day. The day was characterised by the judge’s need to be flexible, relisting matters as circumstances changed, and maintaining familiarity with the detail of a number of cases at once. It was also characterised by judicial scrutiny of the work of others, questioning the local authority’s haste in moving towards adoption in the first case, refusing to process an adoption in the second case until the authority had completed the required procedures, and carefully examining the evidence of a social worker in the afternoon. The judge was continually trying to move a matter towards resolution while being held back by changes of circumstance and the lack of completed work by others. But there are understandable reasons for these delays. They

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include the number of people involved in any care case, including the parents and multiple possible carers, the complexity and vulnerability of their lives resulting in instability and frequent changes of circumstance making planning and assessment difficult, while the professionals working with them are constrained by lack of time and resources. While it is often argued that children need a speedy and reliable outcome, it is also clear that a judge guided by the welfare paramountcy principle cannot cut corners. On the following day in this court Circuit Judge A began with a directions hearing in an adoption case (Matter 4). A young couple had come to this country from an EU country, had a baby, developed a number of drug-related problems and returned to that country. The parents had been visited there by British social workers and had consented to adoption. But the judge was not happy with the absence of any medical information about the child, or any support plans for the adopters, and in particular about the two years that had passed since this consent had been obtained and the lack of information concerning the extended family which should be on file for the child to access in later life. The judge emphasised that there was no problem with the adopters, but that the child should have the possibility of contact with the parents or grandparents in later life. When the social workers looked anxious about this additional work, the judge offered to make an order requiring them to doit, to make it easier for them to devote time to it. This judge took a particular interest in adoption, seeing an aspect of the work as being to educate local authorities about the child’s right to information and possibly contact with its birth family. The judge remarked that 20 years ago courts had simply done what social workers asked, but that this was no longer the case. The judge’s views were shared by other judges we observed but are not consistent with the recommendation of the Family Justice Review that ‘courts should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority’ and that ‘other aspects and the detail of the care plan should be the responsibility of the local authority’ (Review Panel 2011: Executive Summary, para 62). Despite the recommendations of the Munro Report (2011) for improving social work performance in care work, there is a long way to go before the confidence of the courts in social work practice will be restored (see Bean 2011). In the afternoon Judge A would be writing a judgment, and the researcher was invited to observe a second Circuit Judge, Judge B, who would be dealing with a complex private law matter. The judge had already dealt with a matter connected with a civil (non-family) case by phone and another such case in court, and was now ready to begin a final hearing in a complex contact case which had been listed for three days (Matter 5). It involved young parents and the two grandmothers. The father was represented. The mother had just lost her legal aid on taking a job and was not represented. The child was born when the parents were teenagers who had a brief relationship and never lived together. The mother had looked after the baby at her parents’ home for the first months, and then surren-



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dered the baby to the father who lived with his mother, but contact had been frequent. The paternal grandmother had now moved some distance away with her son and the grandchild. Contact had become difficult and the mother was seeking residence. Staying contact had continued, but following Cafcass involvement there were criticisms of the conditions in the maternal grandmother’s home. Social services had recommended that the child should stay with the father who was thought to be doing well, although there was some concern that his new teenage partner was now pregnant and the young couple might find it hard to cope with two small children. An interim contact and residence order was in place. The mother and maternal grandmother did not appear in court. The judge made great efforts to find them, asking his clerk to call their mobile number. The Cafcass officer reported that the mother had refused to speak to her by phone. These attempts at making contact with mother were unsuccessful, so the solicitor for the father was asked to present his case. He set out the facts, asking for a final order. The father was agreeable that there should be contact at a location near his home, but, given the distance and cost of travel, he was afraid that if the mother did not come, he could be found to be in breach of the order. The judge agreed, and was reluctant to make an order that was unlikely to be complied with. The judge suggested that contact should be agreed by the parties, and asked whether Cafcass could offer any kind of mediation. Cafcass reported that there was no contact centre local to the child and asked if the matter could be listed to be heard at a court near the father’s new home, and supported by the local Cafcass team there. The judge resisted this attempt by Cafcass to withdraw the case from the mother’s area, considering that the effect on the mother would be to make her feel that she was losing out ‘right left and centre’. The judge took the view that the work to be done lay in reconciling the mother and maternal grandmother to the outcome and that that must be done in the mother’s home area. Cafcass was therefore asked to inquire during the lunch break about contact centres in the father’s area. After lunch they provided information and the judge made an order, and Cafcass was overridden in order to protect the ongoing relationship of the child with both parents, the judge saying that every attempt should be made to minimise the risk of the child losing contact with the mother. So in this case the judge exercised authoritative scrutiny of the work of Cafcass in order to implement the welfare principle and give the best chance for this child to have a continuing relationship with both parents. The hearing cannot be described as adversarial. Indeed, one party was not even present. Rather the judge was actively intervening with professionals in the interests of the child. In each case, both public law and private law children matters, these Circuit Court judges clearly did not simply choose between two arguments put forward in an adversarial way about what should happen to a particular child, but went beyond this to scrutinise and modify the work of the professionals involved, actively promoting the best possible outcome for the child. That is, they managed the outcome in accordance with the Children Act 1989.

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B.  The District Judge From our observations, the manner of working among the District Judges appeared to be more oriented towards directly finding practical solutions, within the procedural framework of the court, rather than working through other professionals. But they still drew on all available local resources, including court-based Alternative Dispute Resolution. This is not surprising, given their background as solicitors, accustomed to working under pressure directly with clients, and developing good knowledge of local resources and conditions such as house prices, school catchment areas and local employment opportunities. District Judges are not expected to work full-time on family matters, as it has been considered that to do so would be too stressful and lead to ‘burn out’. Working with distressed and angry clients is indeed exhausting, and we have noted above the absence of any effective mechanism for judges to reflect on their practice with support from experienced colleagues as happens through ‘supervision’ in social work practice, or receive any feedback on the eventual outcome for the families following their work on the case. A District Judge in another court remarked that in over 10 years in post he had never had any formal discussion about the quality of his work, but only a single amicable lunch with his mentor. The Circuit Judges we observed were mostly dealing with care proceedings and complex private law cases where there were welfare issues and local authority involvement. The District Judges however handled private law children matters and financial arrangements and other matters arising on divorce or separation. We will first describe two cases in which these judges (Judge C and Judge D) grappled with a range of complex issues. In the first case we observed the success of the gradualist approach towards reaching agreement taken by the judge in a highly conflicted matter where contact and financial problems had become entangled, and in the second we describe how a judge can work to prevent future conflict in a domestic violence context. We will then give an account of a full day’s work by a District Judge (Judge E) devoted to dealing with children matters. The predominant manner of working was seen to be actively supporting, helping and facilitating agreement rather than forensic inquiry or adjudication, again with due emphasis on the welfare of any children concerned. The District Judges are hardpressed, aiming for a rapid throughput of matters, seeking a workable arrangement in financial cases, and, in contact cases, often moving things along step-by-step towards a good parenting arrangement rather than expecting to reach a final resolution immediately. But even a highly conflicted and complex case could be moved along by short interventions and periodic withdrawals from court to enable parties to discuss and agree a workable arrangement. The mode of working was to make a number of short interventions and seek to move to the next stage in resolving the situation, rather than to hold a single inquiry followed by a complete and final judgment.



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i.  ‘Little by Little’ Judge C was observed in a large Midlands court. The case was listed for 10 am as a final hearing in a difficult contact and residence case (Matter 7). The issue was where the child would live, and this was bound up with possession of the house where both parents (cohabitants but with a house in joint names) still lived with their eight-year-old son. The arrangements for his care, which would be shared, would depend on who remained in the former joint home and how that could be financed. Both parents were volatile, and not native English speakers, and the boy was described by the Cafcass officer as exhausted and just wanting the parents to make a decision. The matter was discussed with the parents’ legal representatives in the judge’s room, where both tried hard to find a way through. The difficulties were exacerbated by the procedural requirement to deal with the finances separately. The mother was legally aided and her representative was nervous about issuing proceedings on the house and thereby triggering a statutory charge. The size of the lump sum to be paid to the mother by the father would determine whether she would stay in the house, or where she could afford to move to, and how far that would be from her new job and the boy’s school. Similarly, where the father lived determined the feasibility of various arrangements for the boy getting to and from school and attending frequent sporting events with the father. Furthermore, the amount that the father could offer was limited by what his bank would lend. Both mother and father would have great difficulty in paying running costs for the home and keeping up the mortgage payments. The father was anxious to preserve the small amount of equity acquired as an asset, and that it should not disappear if the mother stayed in the house and needed to draw on it for general outgoings. The legal advisers went in and out of the room, conferring with their clients, and the Cafcass officer also came in and raised the issue of timing the separation to coincide with school holidays to help the boy’s adjustment. Both parties were angry and upset, and there had been mental health concerns and allegations of abusive behaviour. But the essence of their difficulty lay in trying to recognise and react to financial decisions to be made by others. The role of Cafcass was seen as limited to explaining what was to happen to the boy. District Judge C actively worked through the detailed contact plans for the coming summer with the two young barristers, describing them to the researcher as ‘sensible helpful young women’, and together they produced a day-by-day plan which both parties were able to accept. By 2 pm the parties, through their representatives, had made a proposal with respect to the contact and residence issues which they would type up and bring in on the following day, and the District Judge had worked out a way for the financial proceedings to be issued to reach the judge on the same day as the consent order for the child. The draft was signed and handed in at 4.50 pm. Throughout the day these meetings had been directed by the judge, drawing on experience as a family solicitor to find solutions but not to dictate outcomes. Again the impact of the Children Act was clearly visible. The search for a workable parenting arrangement had driven the financial bargaining, not the other way around.

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It might have taken less court time and made listing of other cases more certain if the judge had simply made a decision at the beginning of the day. But the gradual crafting of this set of agreements for this highly conflicted couple, though slow, was so firmly grounded in both the facts and in the wishes and expectations of the parties that it stood a good chance of being workable. Other cases were woven into the available spaces; an adoption ceremony, an application for a special guardianship order, another contact matter (where the judge was sorry that the mother had brought her five-year-old with her as the judge had wanted to make strong criticism of her approach and did not want to do so in front of the child), and then box work. The proceedings were skilled, constructive and focused on the child’s welfare. As the judge commented: ‘not all, but some cases resolve little by little, getting to consensus’.

ii.  Preventive Work A further example of positive input from a judge (Judge D) came in the case (Matter 11) in this court observed on the following day where a non-molestation order was granted, not in the terms applied for, but carefully crafted at the suggestion of the very experienced judge to avoid various possible causes of future friction. In doing so, the judge adopted a helping role, engaging directly with the man’s legal representative in the absence of a legal adviser for the woman. The judge asked what undertakings would be offered if the non-molestation order were to be extended. Would the man consent to an order? How long would the woman like it to last? He began to draft the order in court, while suggesting to the parties ways in which it could be made clearer so as to avoid future argument. For example, he suggested modifying the order to run until a Monday rather than a Sunday, saying: ‘If someone is foolishly celebrating the end of an order, better on a Monday when we can help’. The judge also asked whether the husband had any reason to enter the property. When he was told about an old car that the husband was working on in a garage workshop on the premises, a dispute emerged about whether this was a vintage car of value or simply an old wreck. The judge diffused the argument by suggesting that the order would be postponed for four weeks, by which time all items could be removed. He also suggested including a provision for removing the husband’s possessions from the garage by a circuitous route to avoid conflict, and finally advised that the road names in the area to be covered by the order should be used rather than a measure of distance from the house, as that could give rise to practical difficulty and potential disputes, saying: ‘I wonder what our WPC would do on a dark night: carry a tape measure?’. The husband had been represented by a young barrister, and the wife was accompanied by a specialist domestic violence support worker and a woman police constable. The judge worked with them, avoiding confrontation, looking to the future, and slowly and carefully taking the parties with him to agreement, providing skilled drafting which was carefully and expressly designed to avoid future conflict.



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iii.  The Working Day of a ‘General Practitioner’ In a second court in the south of England we observed a District Judge (Judge E) during a day devoted to children matters. Here a number of separate private law cases passed through the court, many taking less than half an hour, all requiring help and encouragement in finding and making effective an acceptable outcome, namely, a workable parenting arrangement which would be beneficial to the child. The work was reminiscent of that of a busy medical general practitioner with respect to remuneration, quantity, the range of issues, and the difficulty of going beyond the alleviation of symptoms and finding a cure. Perhaps diagnosis might be thought to be a little easier than in the medical context in that the parties make the decision about what to apply for, though finding an effective remedy may be harder in the context of a dispute. Throughout, the judge is bound by the Children Act 1989 to give paramount consideration to the welfare of the child in making any decision affecting the child’s upbringing. This guiding principle can be clearly seen in action in the working day described below. The researcher met the judge at 8.30 am in a small office off the courtroom. The judge was responding to emails, being asked by the listing office to find slots for urgent cases despite current listing times of three months ahead, and discussing training issues by phone. The first case, at 9.30 am, was for directions in a care case, (Matter 32) where a proposed care plan needed to be changed. The usher explained that only one barrister (for the father) was present, and used the tannoy to find the legal representatives for the mother, father, child, guardian and local authority. All five came into court with the Cafcass officer and social worker to say that they had drafted and agreed an order. The judge agreed the order, and the matter was completed by 9.50. The judge then met briefly with Cafcass and local volunteer mediators about any new cases which might be suitable for mediation, of which there were none, and to check the progress of existing cases. Next he read out 13 divorce decrees nisi, and explained the process to one couple who had come to court to hear their decree (Matter 33). The next case was an application from a father for direct contact, but as he had been recalled to prison, Cafcass wanted the probation service to take the matter, while the mother wanted the application dismissed. The judge relisted for four weeks’ time to ensure the father’s request could be given proper consideration (Matter 34). At 10.30, a second private law directions hearing addressed a request to change residence following a complaint about chastisement by a child of 12 (Matter 35). The parents agreed to a social work review and to return in one month. It was left to the judge to raise and secure agreement to supervised interim contact and to ask about the wishes and feelings of the child. He asked for sensitive handling. While mediation might have helped to bring about agreement to an arrangement between the parents in this case, it was in practice the judge in his legal role under the Children Act who actively raised the question of the voice of the child and the need for contact with both parents. At 10.55 a father, who was not present, but represented by the Official Solicitor, was requesting defined access (Matter 36). The father was disabled

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and had behavioural problems, and the 12-year-old daughter wished to stop visiting now that her older sister was free to stop going with her. The judge accepted that the mother had made every effort to support the contact, and the father’s proposal for two visits a year plus a letter was accepted. However, again the judge took a further step to promote the welfare of the child by continuing a family assistance order to enable the local authority to support the child in maintaining contact. At 11.30 two parents came for directions in a contested contact hearing, the mother unrepresented. The judge tried to keep everyone calm and avoid escalation, and asked the parents to step outside and agree, or come back in two months (Matter 37). At 11.45 the listing clerk came into court with a request to make a finding of fact on domestic violence in a contact case. Five minutes later an unrepresented mother with a small baby entered and asked for help in making sure her teenage daughter remained at boarding school to finish her exams despite her wish to leave and live with his father, who in her view was not making realistic plans for her. The judge did not make the order because there had been no communication from the father, but gave the father time to appear, saying that if he did not so, he would consider making an order for the girl to stay at school until she had finished her GCSE (Matter 46). The next case came in at 12.25 (Matter 38). This was a directions hearing in a complex contact case with child protection concerns and ancillary relief associated issues. Reports had been requested from social services and the guardian. The guardian wished to end her involvement as the local authority was now involved. But the District Judge required the guardian to remain on the case until the matter was reviewed, and a final hearing was listed for a month ahead. Again the interest of the child was pursued by the judge, despite the wishes of the professionals. At 1.15 the judge returned to his office to prepare for non-family civil cases in the afternoon: a compensation case where the plaintiff had proceeded without medical evidence and which was deferred, and a litigant in person was making a complaint involving quite complex legal issues against the owner of the holiday villa in a European country which the defendant was trying to argue should be heard in that jurisdiction. At 4.15 the judge was persuaded to hear an urgent application from a man whose wife was refusing to sign the transfer papers for the sale of the former matrimonial home in accordance with an order made by the court over a year ago. The judge made an order to enable the wife’s solicitor to sign on her behalf (Matter 47). So we have seen brief but sometimes multiple interventions throughout the day by a District Judge trying to identify the key issues, and move matters along by seeking possible strategies rather than choosing between two positions put forward in an adversarial way. Indeed some parties did not seem to know what they wanted, but rather what they did not want, which might be whatever the other side was seeking, or the current state of affairs. The roles played were clearly helping, supporting, facilitating and managing. But, though rarely making technical legal decisions, the judge was not working outside the law.



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In child-related matters, as was the case for the Circuit Judges, the District Judges were firmly and constructively implementing the key principle of the Children Act 1989, welfare paramountcy, sometimes in the face of attempts by hard-pressed professionals to reduce their input, whether this is seen, sceptically, as cutting corners, or more generously, as meeting targets. In purely financial matters, the interventions we observed by District Judges appeared to take the form of creatively finding a way forward, rather than striving for a specific goal, as in contact matters. In contact matters the judge seemed to be more often supporting and encouraging parties to move to the position generally favoured by the court, which was that the child should have a continuing relationship with both parents where this was safe and in the child’s best interests. A good example of how District Judges work with finance cases was observed in Matter 20 where a husband was seeking to draw on capital to pay maintenance pending suit in advance of an FDR scheduled for three months ahead, and the wife wished to ring-fence the capital. The parties disagreed about what expenditure was necessary for the husband to rebuild his damaged earning capacity, how far the wife and children could expect to maintain their former standard of living, and how this could be financed. The couple had tried mediation and collaborative law without success, and were now heading for a highly conflicted FDR which would be followed by a final hearing. The judge probed every aspect of the financial situation, and urged the parties to work towards being able to reach agreement at the forthcoming FDR and if at all possible to avoid a contested final hearing. But in the end the parties failed to agree at this stage and the judge was required to adjudicate on the issue of maintenance pending suit, making an order to permit some use of capital as there was insufficient income to meet needs. An example of how the District Judges work in financial matters where there may also be children but no contact or residence issues was provided by Matter 19. These hearings often result in the drafting of a consent order, and there is no need for a final hearing. But even if this is not achieved; the matter is usually progressed by narrowing down the area of dispute and clarifying the facts. The FDR process in Matter 19, for example, was fast and effective. The judge looked at all the options and came to a clear practicable view. An agreement was secured through two short sessions. What did the judge add to what might have been achieved by solicitors or mediators? Perhaps the value of disclosure, dispassionate evaluation, and an opinion backed up by judicial authority and the threat of the alternative, a full and costly final hearing.

C.  The Legal Adviser in the Family Proceedings Court (FPC) Finally we turn to the work of the Legal Advisers in the Family Proceedings Court. We describe their work in some detail rather than that of the lay magistrates because they play all the roles identified in our observations, often simultan­ eously. They use their legal knowledge to give legal advice to the magistrates, they

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manage the court business, guiding not only parties and witnesses but also the magistrates during the course of a hearing. We were frankly amazed by what they were required to do, and did, without formality or fuss. On the day we will describe, the Legal Adviser had to deal with a complex legal issue concerning a child witness in a non-molestation case, a care case with an interim care order (ICO) expiring on the day of the hearing, and a contact case. In the gaps while the magistrates withdrew to deliberate, she also dealt with a complex legal aid issue, a restraining order after a criminal conviction with AttorneyGeneral involvement, advised a colleague dealing with matters in a second FPC, and ended the day helping a District Judge move her belongings to a new room. Four FPCs were sitting on the day we describe here, one with a Lay Bench, two with District Judges and one Legal Adviser taking directions hearings. We observed the Legal Adviser with the Lay Bench, though during the day she also took calls from the other Legal Adviser who was sitting alone and seeking advice. The day began with a quick meeting with a District Judge to ask for advice on the first case in which a man who was contesting an application for an extension of a non-molestation order was planning to call his son of 13 as a witness. In her view this amounted to emotional abuse. She wanted Cafcass involvement and was not sure whether to send the case up to the county court. The District Judge advised that there was such pressure on Cafcass that this would not be realistic and suggested asking for a social services report. Counsel for the wife had looked up the law but said that no one had ever seen a social services report made in such circumstances, but, as the school had been involved, thought that there could be a referral to social services even though an application for an injunction is not considered family proceedings in which such an investigation could be required. The Legal Adviser was concerned that the FPC did not have the inherent jurisdiction of the county court to grant an injunction, but continued to research the matter. The case was put back. It had been set down for the full day, but this was reduced to two hours (Matter 48). The second case (Matter 12) was a public law case. A local authority representative and social worker, the father and his lawyer, and a lawyer for the child, were present. But no guardian had yet been appointed. An ICO was expiring on the day of the hearing. The case had been listed for 30 minutes, but the father and his new partner had put themselves forward as carers and an assessment was being made of their suitability. The child had been in foster care for six months. The mother had not taken up the offer of contact or put herself forward as a carer. She accepted the plan for adoption. The Legal Adviser now raised concerns about whether the mother had been told of the plan for the child. The local authority offered to seek renewal of her consent. The Legal Adviser asked the Bench to flag up the need to be assured that the mother had been fully informed and served with notice of the proceedings and had every opportunity to engage. A timetable was worked out for the assessments, filing the threshold statement and arranging a meeting with the adoption panel. The Bench withdrew for 10 minutes to deliberate and returned to make a further ICO and set the date of next hearing in six weeks’ time.



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While the magistrates were out of the courtroom, the Legal Adviser continued to work on the child witness issue. The lawyer for the father said that there had been no breaches of the existing non-molestation order for two months, that contact was taking place, and that the school was involved and could be relied on to contact social services if they saw a need. The Legal Adviser said that there must be an agreed statement of facts, and the magistrates would need to be assured that this was not a Children Act matter. This discussion ceased as parties involved in separate cases were in court at the same time and the matter required careful handling. For the Legal Adviser, the unresolved issue remained whether the nonmolestation case should go up to the county court. In her view the magistrates are limited by being bound by statute, are less able to be flexible in their approach, and take longer to deliberate. She had to work out what they needed to know, give them the information, and then tell them what to do, typing up their decisions and reasons while the parties waited, using templates to speed up this process. At 11.20 a mother came in to change her children’s surname. The Legal Adviser read out the declaration and advised the mother to keep the document safely as she would need it for a passport and so on (Matter 13). At 11.30 the non-molestation case (Matter 48) began. It had originated in the county court but had been transferred down after two earlier hearings. The mother’s lawyer was ready for a hearing, and the father was willing to agree the order but on a no admissions basis. He argued that the school was aware of the situation, things were going better and they should get on with their lives. But the Legal Adviser was still concerned that a child was involved and there could be unexplored welfare issues. She advised the Bench that if they finalised the non-molestation order, there would be no further opportunity to intervene. There was no known Cafcass involvement. The mother said that the boy had been seen by mental health services and had received counselling. The father had nothing to add. The Bench conferred and agreed the extension of the order. The Legal Adviser commented later that she would have been more proactive about the welfare of the child, but her job was to make sure the Bench reached a legally correct decision and are advised of all matters on which they needed advice. The last case of the morning was an application from a father for a contact order. This was briefly described in chapter five as Matter 14. We emphasise here the multiplicity of roles being played by the Legal Adviser at this stage in the day. First she cleared the court to check that the parties were happy to proceed as there was a social connection between them and an officer of the court. She then set out her role as being to give the Bench both procedural and legal advice but to give the parties advice regarding procedure only, saying that if they needed legal advice they should consult their own solicitors. The parties did not appear to be highly conflicted, but rather to be seeking an authoritative statement from the Bench on the best arrangements to make for their child which would also act as a support if either side were to default. The magistrates firmly advised them to seek mediation, but the father replied that mediation only went ‘so far’ and he wanted an order telling them what to do. The Legal Adviser explained that each should tell

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the court what they were asking for, pointing out that any arrangement should be flexible enough to reflect the child’s changing needs, and that each could be questioned by the other when they had finished putting their position, and offered to call in Cafcass if they wanted it. The Legal Adviser actively assisted the parties in the whole process, at one point saying: ‘I am trying to mediate here’. The Bench retired at 2.10. While they were out, the Legal Adviser dealt with a legal aid matter concerning a restraining order following a criminal conviction, and further paperwork. She described her administrative work to the researcher, which included running the court, advising colleagues, bringing in the Public Law Outline (PLO), arranging media access, and organising the Diversity court users meetings. She said she would like to train to be a judge, as she thought that the judges can look ahead to prevent trouble, while the Lay Bench has a more limited approach and cannot offer case continuity. The Bench returned and made an order in the contact case based on the current arrangements, and referred to the welfare checklist and the child’s wishes and feelings. They commended the parents for being so committed but saw no reason for change, adding that additional contact could take place as agreed, at the same time warning that the order placed obligations on both parents, though they could come back to court if they needed to do so. In describing this day in the Family Proceedings Court with a Lay Bench, we saw the Legal Adviser carrying out almost all of the roles we have identified, often simultaneously, in both public and private law matters. The Legal Adviser ran the court, provided legal advice to the Bench, dealt with parties, witnesses, counsel and the Bench itself, while also supporting a second court, running a number of different cases at the same time, conducting proceedings, and typing up decisions and reasons for the parties. She had a clear view of the difference between judicial and lay roles and the ambition to become a District Judge. One can see why. In addition to all the administrative, managerial and educative tasks she carried out, we also saw a clear commitment to the Children Act welfare principle, though her ability to carry this through was limited by her role as ‘not quite a judge’.

IV. Reflections We are conscious that we have described the processes we observed from the perspective of the official actors. We did not interview the court users. Nevertheless, the nature of the interactions was clear enough. In exercising the helping function, the judges walk a fine line between the two approaches which we argue are always in tension in family justice: ‘behaviour-focused’ and ‘outcome-focused’. It is perhaps not surprising that some research on the perceptions of parents who have experienced the family justice system in England and Wales has shown that some feel frustrated by being expected to reach their own agreements, though other research suggests, to the contrary, that many parents believed they should

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be strongly encouraged to reach agreement (Hunt 2010: 24). But clearly the judge must be careful to maintain a balance. In the last analysis parties are, after all, entitled to legal adjudication and it would be a denial of justice to refuse to make it. However, we would maintain that when a judge acts as a facilitator, and also in a helping role, the judge is in a strong position to reconcile the tension between the two approaches. The significance of the desired outcome remains in focus, but, unless it cannot be avoided, the judge will not seek to impose this in the face of strong opposition. By facilitating agreement, the judge guides the parties towards the outcome envisaged by the law, exercising judgement as to how much latitude the parties should have in fashioning their own solutions, and seeking to ensure that each party is treated fairly. Perhaps more worrying is the research evidence that many parents in family proceedings feel that they are either terrified of the system, not heard, or, worst of all, completely ignored (Hunt 2010: 8–13). One has to make allowance for the fact that these are highly emotive issues, and they play themselves out in unfamiliar and sometimes forbidding surroundings. As two magistrates in a recent Australian study said: ‘you’re always trying to calm the situation down, get everybody to have their say, work within time limits that are reasonable . . . I’m going to take their child away and they’re never going to accept that decision if they haven’t had a fair say’; ‘from the moment you walk on the bench someone’s looking at you and expecting you to look back . . . the pressure’ (Anleu and Mack 2005: 609, 613). It is almost impossible for both, or often either, of the parties to feel satisfied with any outcome. However, there is also reason to believe that many of these negative feelings occur in the context of the more ‘traditional’ procedures, such as care hearings (Lindley 1994; Freeman and Hunt 1998; Brophy et al 2005) where there is more formality and, arguably, the stakes are higher, or in particularly complex private law hearings where there may be cross-examination (Douglas et al 2006; see Hunt 2010: 10–11) and which sometimes involve welfare issues which might be dealt with in public law proceedings. But we have seen that, while these might take up a good deal of judicial time, they constitute only a small proportion of all judicial activities. We have to say that, at least from what we observed, judges (and the Legal Adviser) were unfailingly courteous and helpful to all parties, as also were the court staff. The judges were ‘on show’ in court, and very careful of their language, avoiding any possibility of being misunderstood as taking sides, but at the same time careful not to use critical language. Contradictory statements in evidence would be referred to as confused or mistaken, rather than dishonest. Even when a Circuit Judge in a care case had to be firm with a young mother whose answers were less than clear, the judge very quickly suggested breaks when the young mother seemed tired and distressed, and often encouraged her by saying it was clear how much she cared for her child and how hard she had been trying to deal with her drug addiction. Court staff, both at the entrance to court and at the information counter, were clearly used to dealing with people under stress, and were pleasant and helpful. Most courts had cafés, which opened early and made

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quiet discussion possible. The layout of the courts maintained the careful divisions between front of house (the public areas, consultation rooms and courtrooms) and ‘behind the scenes’, where the records were kept and judges had their rooms. Passages and doorways were designed to prevent any possibility of a party or witness coming into contact with a judge except in the courtroom or by invitation to chambers.4 To avoid any possibility of a judge overhearing conversations or being approached inappropriately, even cloakrooms were carefully separated, most judges having a private bathroom. These may seem minor matters, but they speak loudly of the ethos where, at every level of interaction, there was awareness of the need for fairness and for encouraging a calm and measured approach to these inevitably distressing experiences. Witnesses were carefully told about procedure, and parties about not interrupting. The seating arrangements in court are designed to protect the parties from too close a contact with each other, and to place them close to their advisers. We appreciate that this picture reflects only what was observed in a small corner of the entire system. It is not a conclusion based on an extensive survey. However, we would be surprised if the ethos which prevailed was unusual for the system. On the other hand, we are aware that many parents using the courts have expressed dissatisfaction over the lack of separate waiting areas outside the courtroom, and of provision for private discussion (Hunt 2010: 15). There are clearly problems related to available space. The Family Justice Review gave some limited consideration to these issues, recommending (Review Panel 2011: 79) that: HMCTS (Her Majesty’s Courts and Tribunals Service) and the judiciary should ensure routine hearings use telephone or video technology wherever appropriate; HMCTS and the judiciary should consider the use of alternative locations for hearings that do not need to take place in a court room; HMCTS should ensure court buildings are as family friendly as possible; HMCTS should review the estate for family courts to reduce the number of buildings in which cases are heard, to promote efficiency, judicial continuity and specialisation. Exceptions should be made for rural areas where transport is poor.

These recommendations were accepted by the government (Ministry of Justice and Department for Education 2012: 45). But improving facilities costs money, and it remains to be seen whether sufficient resources will be forthcoming in the current economic climate. It is undoubtedly true that information technology can also help, but we would warn that ‘efficiencies’ of these kinds can come at a cost of losing the benefits of personal interchanges, the concentration on children’s interests and the ethos we have described. As regards reducing the number of locations in which family law matters are dealt with, and their concentration within a single court structure, there is a need to be aware of the sharp differences in matters addressed, roles played and the skills needed by the Circuit Judges, District Judges and Legal Advisers. At present there is a form of triage into the different court set4   For a full discussion of the relationship between court architecture and due process see Mulcahy (2011).

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tings. A new system of allocation for the unified court is being developed (Mr Justice Ryder 2012: paras 32–34). Given the drive to remove matters from courts, would the preventative and helping work of the judges be lost? How will the absence of legal representation after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 affect the work of the Bench? (see Maclean and Eekelaar 2012). Will the need for judges to take on more demanding managerial roles for their court, as well as for their cases, be supported by adequate resources? One judge we observed, who had been appointed as a Designated Family Judge for the area, described the strength of the judiciary as their independence and decisionmaking, taking hold of each case, cutting away issues and making the matter decidable. The task of the managing judge is to manage the system so that each judge works with a well-managed team and can decide, and not be thrown off track by an overconfident advocate or feel unable to help a trainee solicitor. We will revert to these issues at the conclusion of chapter nine where we consider the possible role of the courts in what we call ‘late modern justice’ which appears to expect people, especially in regard to family issues, to resolve their own disputes on the basis of information provided from official sources and use of social support networks. But before that, we take a closer look at the challenges currently facing courts dealing with the two most common categories of cases involving children: those arising from child protection concerns (‘public law’ cases) and those arising as a result of disputes between parents (‘private law’ cases).

7 Public Law Children Cases The claim of the Victorian jurist, AV Dicey, that one of the features of the rule of law as it applied in Britain was the ‘absence of arbitrary and discretionary’ power (Dicey (1885: xx)) was much derided, at least with regard to the ‘discretionary’ element, notably by Sir Ivor Jennings. Jennings (1959) pointed to the wide discretionary powers frequently conferred on government by statute and exercisable under the prerogative. At the middle of the twentieth century, partly as a legacy of the wide executive powers exercised during the Second World War, but also on the advent of the welfare state, it certainly seemed that government enjoyed extensive powers to take executive action according to its own lights, subject to judicial scrutiny only concerning whether the power had been lawfully conferred, but not over the merits of the action. This was true also for the way local authorities exercised their powers in the area of child protection. During the last quarter of the century, however, the judiciary have exerted growing readiness to examine the way discretionary powers are exercised. They have developed principles of natural justice and reasonableness that they have implied into statutes and even questioned the way the prerogative powers are exercised.1 Greater awareness of the European Convention on Human Rights brought about by the enactment of the Human Rights Act 1998 has further enhanced judicial involvement in governmental action. Some have regarded this increasing judicial ‘activism’ with alarm (for example, Pinto-Duschinsky 2011: 19–22).

I.  The Development of Child Protection in England and Wales We express no view on these wider issues, and refer to them only to provide a context in which to view the relationship between the courts and social welfare agencies in the context of child protection. Apart from some supervision by magistrates over the treatment of apprentices by guilds, there was little official protection offered to children prior to the nineteenth century (Eekelaar 2002). When   Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

1

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such protection gradually emerged, it was first directed at especially vulnerable children (such as those in certain dangerous employments), and (very late in the century) at very young children looked after for reward for extended periods: socalled ‘baby-farming’. The protection in the former case took the form of criminal sanction (later assisted by the introduction of universal state education) and the latter through registration requirements and inspections. Inspections were also used to attempt to safeguard the welfare of children maintained under the poor law (many in workhouses). No doubt genuine efforts were made by many to achieve acceptable standards of care, but there was no judicial oversight, and the last public review in 1946 of workhouses before their abolition found evidence of harsh conditions endured by children within them (Curtis Committee 1946). Significant decisions directing the movement of children required judicial sanction. For example, arrangements to send ‘poor law’ children abroad as child migrants needed confirmation of the child’s consent by a magistrate, and approval by the Poor Law Board. These may largely have been treated as formalities. There were no such requirements, however, regarding the much larger number of children migrated by voluntary societies. The Industrial Schools Act 1857 allowed magistrates to send child vagrants and beggars, as well as children under 12 who had committed offences or who were beyond the control of their parents, to industrial schools. The goals of these schools were partly protective, rather than the more punitive objects of reformatories, to which more serious offenders, or older youthful offenders, were sent. But it could be mere chance whether such children got on the wrong side of the law, so in 1932 the two classes of school became assimilated in ‘approved schools’,2 populated by both ‘delinquents’ and by ‘children in need of care and protection’. But what of children in danger within their homes? In 1868 the poor law authorities were allowed to prosecute parents for wilful neglect of a child endangering the child’s health,3 and the 1889 Prevention of Cruelty to Children Act allowed a court to remove a child from home if the parent was convicted of certain offences with respect to the child. Ironically, these children were later included in the category of children being ‘in need of care and protection’, together with the ‘delinquents’ and the ‘vagrants’,4 although they were not sent to approved schools, but instead committed to the care of a local authority. But, until 1952, such committal still depended upon prosecution of a parent for an offence. After 1952 it was only necessary to show the harm or neglect.5 But official attention was now concentrated on worries about juvenile delinquency and there is little evidence of widespread concern at that time about the need to protect children within their own homes. If there were such concerns, the child could be brought before the court under procedures very similar to those that applied for   Children and Young Persons Act 1932.   Poor Law Amendment Act 1868. 4   Children and Young Persons Act 1933. 5   Children and Young Persons (Amendment) Act 1952. 2 3



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delinquent children, and, if found to be in need of care and protection, committed to the care of a local authority. But, while there was relatively low appreciation of risks to children within the home, the powers of local authorities over children already in their care were extensive. They had inherited the power of the poor law authorities to acquire parental rights simply by passing an administrative resolution with respect to children they were looking after when they deemed the children to have been deserted by a parent,6 or where they considered the parents to be of such ‘habits and mode of life as to be unfit to have care of the child’.7 The parents could object, but many would have found the process of objection intimidating, and they were only given the right to be informed of it in advance in 1983. One could say that the ethos of the time perceived the influence of apparently disreputable parents (and families) on children as malign, and that the children’s future was best secured by severing links with the family. The Children Act 1948 however marked a distinct break from that attitude, at least on paper, for it required the authorities to try to restore these children to their parents and families ‘where it appears to them to be consistent with the welfare of the child so to do’. Despite that, their powers actually expanded when in 1975 they could pass a ‘parental rights’ resolution on the ground only that the child had been in their care for more than three years.8 The 1970s also saw a reawakening of awareness of the occurrence of domestic violence and child abuse within the home. In response, local authorities wielded their powers more vigorously. They were assisted by some legal decisions. In 1980 the House of Lords held that when local authorities were caring for a child on a voluntary basis, they were not obliged to return him or her to the parent immediately the parent requested this, even if they had not passed a resolution in respect of the child,9 and in 1982 the House held that when a child had been committed to their care by a court, the authorities had complete discretion whether or not to allow contact between the child and its parents.10 Yet shortly afterwards confid­ ence in the competence of local authority social workers in dealing with such cases suffered a series of blows in a number of high-profile cases where they were seen to have either failed to protect a child (Jasmine Beckford, Kimberley Carlile) or, in the Cleveland case, to have intervened too rigorously and inappropriately. At the same time, radical social work theory shifted emphasis from helping clients to cope with existing structures towards empowering them to challenge them (Bailey and Brake 1980; Taylor 1993). The Cleveland case was particularly problematic, because it involved allegations of sexual abuse. Social awareness of child   Poor Law Amendment Act 1889, s 1.   Poor Law Amendment Act 1899. 8   Children Act 1975. 9   London Borough of Lewisham v Lewisham Juvenile Court Justices [1980] AC 273. 10   A v Liverpool City Council [1982] AC 363. In 1983 authorities were prevented from totally refusing contact, but still had jurisdiction to alter it substantially. This led to adverse findings in the European Court of Human Rights: H v United Kingdom, App no 950/81, Series A no 120; B v United Kingdom, App no 9842/82, Series A no 121. 6 7

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sexual abuse followed some time after the reawaking of awareness of physical abuse (originally termed ‘child battering’), but its detection and proof demanded heightened intrusion into families. The ‘solution’ to this dilemma offered by the report into the Cleveland affair was to allow such intrusion, but to subject it to rigorous legal procedural conditions (Butler-Sloss Report 1987).

II.  The Children Act 1989 and its Aftermath The Cleveland affair occurred while preliminary work on the legislation that was to become the Children Act 1989 was in progress. That Act was overtly presented as finding a new ‘balance’ among the interests at stake in child protection cases. The emphasis was shifted away from parental ‘rights’ to parental ‘responsibility’. This expression could mean either that the state would hold parents more strictly to account for their stewardship of their children, or that responsibility for children lay more with parents than on the state. There is little doubt that the promoters of the Act intended it in the latter sense (Eekelaar 1991a). State intervention was intended to become more difficult. The threshold for intervention was raised to cases where ‘significant’ harm had occurred or was thought ‘likely’. The House of Lords later held that harm could not be found to be likely simply on the basis of suspicion. The assessment had to be grounded on established facts.11 On the one hand, courts are told not make an order at all unless they think it is better for the child to make one than not to do so, thereby requiring careful consideration of what is likely to happen to the child in either eventuality, but at the same time are required to ‘have regard to the general principle that any delay in determining any question is likely to prejudice the welfare of the child’.12 Shortly before the Children Act 1989 was enacted, parents, who previously were not parties to care proceedings, had achieved party status in such proceedings,13 had become eligible to receive legal aid, and were much more involved in the legal process. Parton (1991) has described this as the ascendancy of ‘legalism’, and a shift in emphasis in social work from child welfare to child protection. This development has created major challenges for local authorities, aggravated by the fact that it was accompanied by a steep rise in the number of cases referred to them for suspected child abuse, although the number of children placed on child protection registers remained more or less constant (Gibbons et al 1995). This feature has been observed, elsewhere, for example, in the United States and Australia (Parton et al 1997: ch 1). The reasons for the increase in referrals are various. One is likely to be a broader perception of the types of behaviour thought 11   Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, as explained in re B (Children) (Sexual Abuse: Standard of Proof) [2008] 2 FCR 339. 12   Children Act 1989, s 1(2). 13   Children and Young Persons (Amendment) Act 1986.



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of as abusive, especially emotional harms. Another could be a generally less trusting society, accompanied by greater aversion to risk, so that referrals are made as a form of insurance against risk (Parton et al 1997: 82–83). Yet, given the complexity of safeguards against intervention, it is plainly not feasible for welfare authorities to become involved with more than a fraction of cases referred to them. Local authorities therefore resort to a variety of devices to ‘filter out’ cases from active intervention. Prior to the enactment of the Children Act 1989 Dingwall et al (1983) had remarked on this process, calling it an application of a ‘rule of optimism’ which enabled social workers to rely on a cultural assumption that parents love their children as a way of limiting the burden of intervention. A further way of reducing the burden of child protection work was to attempt to prevent circumstances occasioning such work from arising. This was not new. A provision imposing on social services a duty to make available ‘advice, guidance and assistance’ with the goal of reducing the need for taking children into care was first expressly stated in 1963.14 This was somewhat widened in the Children Act 1989 through general duties to provide various services and assistance to children who were ‘in need’, defined broadly as being unlikely to achieve or maintain a reasonable standard of health or development without such services or assist­ ance.15 Galvanised by the murder in 1993 of three-year-old James Bulger by two ten-year-old boys, welfare authorities during the 1990s were urged to ‘refocus’ (or ‘rebalance’) their activities more towards reducing social conditions that could produce such delinquency and less on cases where significant harm had occurred or was thought likely, and in this way such cases might be averted in the future. This policy was significantly developed by New Labour after entering government in 1997 in its bid to tackle ‘social exclusion’ (see Parton 2006). Attention moved further from child protection towards a policy of early intervention and close monitoring directed at potentially all families. This policy was encapsulated in the Children Act 2004, which required local authorities to make arrangements with authorities with a view to improving the well-being of children in the authority’s area so far as relating to (a) physical and mental health and emotional well-being; (b) protection from harm and neglect; (c) education, training and recreation; (d) the contribution made by them to society; and (e) social and economic well-being.16

During this period, governments became increasingly concerned about the extent to which court activity in child protection cases consumed resources. They sought to address this by encouraging welfare authorities to deal with matters out of court, and, if that did not happen, trying to shorten the length of the proceedings. In 2007, Judith Masson (2007) pointed out that, since the implementation of the 1989 Act, three reviews had sought to further these objectives, with little success. Further severe criticisms were made of the processes on account of the high   Children and Young Persons Act 1963.   Children Act 1989, s 17. 16   Children Act 2004, s 10(2). 14 15

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expenditure of legal aid funds in care proceedings (Department for Constitutional Affairs 2005). An even more direct attempt to reduce the number of child protection cases brought to the courts was made in April 2008 when the court fees payable by a local authority bringing care proceedings were increased from £150 to £4800 payable in full on issue of proceedings (White 2009: 253). However, in 2008, another case of the death of a child, Baby Peter, attributed primarily to social work failure (Laming 2009), returned attention to child protection, and was followed by a marked increase in both referrals and child protection court activity (Parton 2008, 2010).

III.  Attempts to Control the Management of Child Protection Cases in the Family Justice System Shortly after the Children Act 1989 was enacted, Stephen Cretney (1990) foresaw that the courts would take on an increasingly managerial role in child protection cases. This arose mostly because the Act’s requirement that courts should only make an order if they considered that the proposed order would be better for the child than making no order propelled courts into assessing what would happen to the child if they made the order. ‘It is difficult’ Cretney wrote, to see how a court could properly carry out such a balancing exercise without having before it full evidence about the range of facilities and services with the Local Authority will be able to make available for the child and without hearing evidence about the Authority’s plans for the child if a care order is made.

And so it turned out. Already in 1999, in their comparison of care proceedings brought after the Act with those occurring before it, Hunt et al (1999: 110) stated that this feature set the post-Act cases ‘worlds apart’ from the pre-Act proceedings. Local authorities were planning ahead in more detail and bringing these plans to the courts. This was formally recognised in a local authority circular of 1999 which set out detailed guidance of what should be covered in a care plan,17 and the Adoption and Children Act 2002 formally required local authorities to prepare a care plan when applying for a care order, within a time frame laid down by the court, and to keep it under review pending the final hearing.18 Despite these pressures, the Children Act 1989 had required courts to draw up a timetable to dispose of the matter without delay, and make necessary orders managing the process.19 But concerns about the time taken (with implications for costs) led to repeated top-down attempts to structure judicial case management.20   Care Plans and Care Proceedings under the Children Act 1989 (LAC (99) 29).   Adoption and Children Act 2002, s 121 (inserting s 31A into the Children Act 1989). 19   Children Act 1989, s 32. 20   See the description by Masson (2012). 17 18



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A Protocol for the Judicial Management of Children Act Cases, coming into effect in November 2003, was designed to reduce delay by setting out a time frame within which various stages of the procedures in care proceedings should be completed. There were six stages: Days 1–3: Application On or before day 6: First hearing By Day 11: Allocation of case to appropriate court (Family Proceedings Court or county court) and directions hearing Between Days 15 and 60: Case management conference By week 37: Pre-hearing review By week 40: Final hearing However, it proved impossible to keep cases rigidly within this timescale. In a sample of cases occurring in 2004, over a half (54.6 per cent) took longer than 40 weeks to complete. But the average duration was not much longer. Where the outcome was a care or supervision order, this was 43.8 weeks (Masson et al 2008: 53–54). The revision of the Protocol in the Public Law Outline (2008) allowed more flexibility. The court is required to set a timetable for completion as appropriate for the child who is subject to the proceedings (The Timetable for the Child), although specific periods are laid down for the earlier stages of the process. In an attempt to reduce delay, authorities are required to have taken certain measures before making the application. The subsequent process was broken into four stages. A First Appointment, to take place within six days of the application, would confirm the Timetable for the Child, check the care plan and give initial directions; there should be a meeting between lawyers and a case management conference by day 45; a further lawyers’ meeting to resolve outstanding issues and prepare for the final hearing should occur between 16 and 25 weeks, and the final hearing should take place according to the Timetable for the Child (Pearce and Masson 2011: 28–33). While the strict 40-week target was removed, completion within this period was retained as a performance indicator, with the goal in 2009/10 of achieving 48 per cent completions within that time in county courts and 57 per cent in Magistrates (Family Proceedings) Courts. But it has proved very difficult to ‘hold the line’ as regards completion times, and the average crept up to 55–56 weeks in 2011 (Ministry of Justice 2012, Table 2.6). The Family Justice Review (Review Panel 2011: para 3.3) suggested a number of reasons for this: local authorities too often wait too long before making an application to court; the quality of evidence they present is not consistently good; this fuels distrust and lack of confidence in local authority social work; there have been difficulties in recent years in providing court social work services through Cafcass in some areas so these are also distrusted; multiple reports from expert witnesses are a time-consuming and routine requirement; the reliance on experts rather than local authority assessment encourages authorities to think there is little point in carrying out their own expert assessments before a case begins; the rules and guidance intended to manage proceedings are often ignored; courts too often fail to manage cases robustly, with too little regard to the

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child’s timetable; and capacity issues in all parts of the system mean work is not always done when it should be.

The Review adds: The system struggles to cope with the weight of its responsibilities. Understandable sympathy for parents and an acute awareness of the enormity of the decisions encourages a wish to explore every avenue. The idea of a proportionate approach comes across as unfeeling as well as seeming to risk denial of the parents’ right to a fair hearing. Processes become exhaustive so that when a decision is finally made everyone can be reassured that everything that could be done was done. We were told and we agree that the right of the parents to a fair hearing has come too often to override the paramount welfare of the child.

The Review recommended (Review Panel 2011: Executive Summary, para 62) that, to address this issue courts should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority. Other aspects and the detail of the care plan should be the responsibility of the local authority. When determining whether a care order is in a child’s best interests the court will not normally need to scrutinise the full detail of a local authority care plan for a child. Instead the court should consider only the core or essential components of a child’s plan. We propose that these are: planned return of the child to their family; a plan to place (or explore placing) a child with family or friends; alternative care arrangements; and contact with birth family to the extent of deciding whether it should be regular, limited or none.

But in addition, the review stated (Review Panel Committee 2011: Executive Summary, para 70): A firm approach is needed. Government should legislate to provide a power to set a time limit on care proceedings. The limit should be specified in secondary legislation. The time limit for the completion of care and supervision proceedings should be set at six months.

This would halve the time care proceedings currently normally take. If it could be achieved, it would have a profound effect. For example, only two of the nine sample cases set out in the Ministry of Justice’s Care Profiling Study (Masson et al 2008) were completed in fewer than 24 weeks. The causes are rather more complex than the managerial issues on which the Family Justice Review focused its attention, as will be discussed below.

IV.  Tensions and Contradictions in Child Protection Case Management Summarising the disjointed approach of the official reviews of care proceedings held since the Children Act 1989, Masson (2007) observed that



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time limits and limited fees are not enough to secure that cases are dealt with economic­ ally and decided without delay. There also has to be agreement about what has to be decided, the minimum information which is necessary to do this and about securing the necessary resources.

Those issues raise a variety of tensions which run contradictory to the managerial goals of those concerned about the speed of the process and expenditure of resources. In exploring the areas where this is evident we will draw on an analysis of judgments placed in the public domain in an anonymised form as part of the government’s recent attempt to make family proceedings more visible and thereby both increase public confidence in family courts now and provide a source of information for the children involved in the future. Between November 2009 and December 2010 a sample of judgments in family cases involving public law issues were anonymised and published on the BAILII (British and Irish Legal Information Institute) website open to the public. This took place in response to concerns expressed by some sections of the press about ‘transparency’ of family courts (see Ministry of Justice 2007). The main idea was that ‘improving openness in the family courts [might be achieved] not only by changing the frequency and category of people going in to the courts, but by increasing the amount and quality of information coming out of the courts’ (Ministry of Justice 2011c, para 1). To test this, written judgments of certain types of family case in five family courts delivered between November 2009 and December 2010 were published in anonymised form online. The parents/guardians involved in the cases were provided with written versions of the judgments. The cases included in the pilot included all those where an interim care or supervision order, or a final order was made at a hearing in the selected Family Proceedings Courts (FPCs) and county courts. These judgments did not emanate from the kinds of case which become known to lawyers through reported judgments of the higher courts, usually as a result of an appeal. They reflect more accurately the more routine work of the lower courts. So, in order to broaden our examination of the work of these courts, we examined a sample of the judgments that were published online by BAILII as part of the Family Courts Information Pilot (Ministry of Justice 2011c). We analysed 40 judgments, selecting every tenth judgment starting from a randomly chosen number. This resulted in 24 judgments from three different FPCs, and 16 from two different county courts. Twenty-nine involved applications for care orders or placement orders, or both. The rest comprised the following applications: Interim care order: 3 Special guardianship order: 1 Supervision order: 1 Supervision order plus special guardianship order: 2 Supervision order plus residence order: 1 Residence order: 1 Discharge of care order: 1 Special assessment: 1

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Our main purpose was to attempt to evaluate the nature of these judgments and assess the benefit of their publication. However, they also offered us a further insight into the way cases involving public law issues had progressed through the family justice system, from identification of abuse to disposition.

A.  The Identification of Abuse In the 1980s, Dingwall et al (1983) argued that, apart from severe cases, it was seldom possible to conclude abuse had taken place (and child protection intervention might be necessary) simply by the presence of the physical state of the child (which was frequently uncontested). It was usually necessary to supplement this with an assessment of the parents’ capacity and moral character. This would allow a particular interpretation to be given to an existing condition and a prognosis made of the future. One key feature of this was the willingness, and capacity, of the parents to co-operate with the local authority. Parton et al (1997: 83–95) described the intervention process as a form of ‘risk insurance’ based on observation of the behaviour of the parents ‘making sure by the means available that for practical purposes the child is “all right”’. This was underlined by a Department of Health publication in 1995: Child Protection: Messages from Research, which argued that any single incident of apparent abuse had to be seen in context so that it could be decided what form of intervention, if any, was appropriate. This flagged up the importance of giving full attention to the possibility that the child and its family might need support rather than protection. In the light of this, the official guidance regarding investigation (Working Together) was substantially redrafted (Department of Health 1999). Parton (2008: 105) writes that, unlike in the earlier versions (t)he concept of ‘significant harm’ was clearly located within the more wide-ranging notion that a child’s health and development was very different to the idea associated with the battered baby syndrome. . . . The 1999 guidance made it clear that (concerns about significant harm) should be responded to by social services in the context of their much wider ‘responsibilities towards all children whose health and development may be impaired without provision of support and services’.

As a consequence, a more complex and integrated mode of investigation was required. The effect of this on court proceedings is not easy to establish. However, there seems little doubt that it has influenced the time taken in coming to a decision about what action to take. This is indicated by the finding by Hunt et al (1999: 67) that cases arising after the Children Act 1989 were less likely than those before it to be triggered by a crisis, and more likely to have followed extensive involvement with the family through ‘the use of accommodation and supervised placements in response to previous crises which might have led to earlier court action’. Indeed, the Care Profiling Study (Masson 2008: 25) showed that 90.6 per cent of the sampled families were already known to social services before the application, 81.3 per cent for at least a year.



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So in theory assessments could take place outside the court system, with the court invoked only when the evidence establishing ‘significant harm’, or its likelihood, (the ‘threshold conditions’) is clearly established. The time taken for the assessments would not necessarily be different, but, since it would occur before proceedings commenced, it would not be perceived as a ‘delay’ in court procedures. There is evidence that indicates this indeed happens to a certain extent. Establishing the ‘threshold’ criteria for intervention is rarely a major issue in the hearing. Pearce and Masson (2011: 127) record that this was ‘the subject of negotiation’ in most of their sample cases, and that ‘there was no case in the sample where the parents disputed the whole basis of the local authority’s intervention; such cases are highly exceptional’. This appeared also from the BAILII judgments. Only 10 of the 40 applications were opposed. Mostly the parents in these cases either accepted that the threshold conditions were established, or they neither agreed nor opposed this. Nine were agreed, and the rest were ‘neither agreed nor opposed’. Sometimes one parent agreed and the other opposed. However, the context in which the authority seemed to reach its conclusion about what form of longer-term intervention it should follow varied. In only a very few cases (some 5 per cent) did this seem clearly to occur prior to any court involvement, although in each case monitoring had been occurring through other means. For example, in one application for an interim care order,21 one of the many cases where a parent (here, the mother) was a drug abuser, social services had worked extensively with her prior to coming to the court, using a number of written agreements between them and the mother. This was one of the few cases where the mother opposed the application, and the only one where a court held that the threshold conditions were not established, in this case, because the mother had co-operated sufficiently with the authority. Local authorities also reached a conclusion about significant harm without prior court involvement in a few applications for care orders, but these seemed to be especially severe cases. In one,22 the family had in any case been monitored because the child was on the child protection register from birth because several members of the family were registered sex offenders. In another,23 the mother had been subject to extensive assessments (outside any court regime) on account of low intellectual ability. However, despite those few cases, in most cases a parent was monitored or assessed within the context of a court order, usually an interim care order (the other possibility is an interim supervision order). Masson et al (2008: 43) observed of their sample that 92.7 per cent of applications for care orders had been preceded by applications for interim orders (mostly for interim care orders). Given the fact that so many families are involved with social services for quite long periods prior to applications being made to court, it may be wondered whether it should not be possible in more cases to have done sufficient monitoring prior to the application to obviate the need for extensive monitoring after it. If that were   [2010] EWMC 66 (FPC).   [2009] EWMC 15 (FPC). 23   [2010] EWCC 42 (Fam). 21 22

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done, the period of monitoring would be displaced, in whole or in part, from after making an application to court to before making it, and would not therefore be considered as ‘delay’ in processing the case (even though it would still be necessary to do it). Whatever the answer is to this question, the need for monitoring after an application is made is likely to increase in view of the finding by Cafcass (2012: 14), based on information provided by children’s guardians in 2011, that the proportion of applications made after short, or no, prior involvement with the family had dramatically increased (from 17.2 per cent to 52.7 per cent) since the Care Profiling Study’s 2004 data. That suggests a greater willingness to intervene early, almost certainly linked to the consequences of the death of Baby Peter in 2008. It is difficult to see how sometimes extensive periods of assessment within the context of a court order can be avoided if such cases are to be given the attention they require. In the Care Profiling Study, applications for interim orders had mostly been dealt with at the first hearing under the Public Law Outline, but sometimes they were applied for later in the process. This permits evidence to be assembled for the making of a final care order. It is true that there must be grounds for believing that the threshold conditions exist before the court can make an interim order.24 But it is only when making the final order that the court must be satisfied that they do actually exist. The distinction is a fine one and not usually made in practice.25 But it does mean that applicant authorities need not, and do not, necessarily assume that a finding in their favour in interim proceedings will result in a favourable finding at the hearing for the care order. Masson (2007) explains: Proceedings are frequently pursued in a context of very limited co-operation from parents. Consequently, the local authority may not have completed a comprehensive assessment and be unclear about the future plan for the children. Parents are often reluctant to make any admissions while the local authority’s plan is unclear, and clarifying this may depend on an assessment of the parents’ parenting capacity which will be the subject of a direction at the case management conference.

This passage shows how the authority’s future plans can be contingent on findings about the parents’ behaviour, and that such findings can sometimes only be made within a court-directed procedure. Establishment of the threshold conditions can depend on such findings. So, in one of the BAILII cases,26 the application for an interim care order had been preceded by an interim supervision order, during which period the mother’s interaction with the child, especially when she was not taking medication, was closely monitored, enabling evidence supporting the threshold for making an interim care order to be obtained. The interim order   Children Act 1989, s 38(2).   It is arguable that, by ruling that a child should be removed under an interim care order only if the child’s ‘safety’ demanded it, the courts have raised the requirements for obtaining an interim order too high, making it harder to protect children within the framework of the Act: see re H [2002] EWCA (Civ) 1932; re GR (Children) and others [2010] EWCA (Civ) 871. The effect of this on the length of proceedings is unclear. We are grateful to Judith Masson for this point. 26   [2009] EWMC 11 (FPC). 24 25



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would allow for further assessment as to whether the child should eventually be placed with its grandmother. In another case,27 the authority had acquired an interim care order regarding an eight-month-old baby thought to be at risk of neglect and emotional harm, and placed the parents and child in a residential assessment unit. The outcome was positive, and the child was thriving in the community. The authority, however, wanted to continue monitoring progress, now under a supervision order. The FPC held that the threshold was met and granted the order. However, it is not surprising that evidence relevant to the threshold conditions is usually also relevant to what action should be taken should the conditions be met, that is, disposition. In a number of the BAILII cases, it seemed to perform both functions. For example, in one,28 the failure of the parents to comply with rehabilitation programmes while the child was in foster care under an interim care order formed part of the grounds for holding that the threshold conditions necessary to make a full care order were satisfied but also for the decision about what to do afterwards. There were three other very similar cases in the FPCs29 and four in the county courts.30 These examples show that relatively long-term engagement with a family is often necessary in order to confirm to a court’s satisfaction an original belief that the case is one of child abuse or neglect as understood by the law: that is, that it satisfies the ‘significant harm’ threshold test, as well as what is the best thing to do if this is established. While this can sometimes be achieved without court involvement (but then it seems it is likely that the family will have been monitored closely under some other mechanism) it will often need to be done within the context of some interim court order. The evidence acquired will not usually be solely directed at the threshold, but will often form part of the grounds for that decision (perhaps even for holding that the threshold is not achieved). In an attempt to reduce the time care proceedings take, in 2008 the government introduced a pre-proceedings process, which requires a local authority intending to bring care proceedings first to inform the parents of this by letter, giving them a chance to seek legal advice and meet with the authority. The hope is that in this way the parents might be persuaded to accept the authority’s position, or agree some outcome with the authority, and court proceedings be avoided. Masson (2010) expresses some scepticism whether this can speed up the overall process, remarking that by the time this stage is reached, there are few cases where an order can be avoided. Furthermore, there are advantages in having the assessment process overseen by a court, which include stricter monitoring, and the facts that there can be input from the child’s guardian and the child is under the court’s protection. Given the complexity of the issues that are usually involved, it is difficult to see how this can easily be contained within a rigid timescale, as has been apparent time and again in the failed attempts to impose such as structure.   [2010] EWMC 75.   [2010] EWMC 75 (FPC). 29   [2010] EWMC 20 (FPC); [2010] EWMC 18 (FPC); [2010] EWMC 47 (FPC). 30   [2010] EWCC 31 (Fam); [2010] EWCC 42 (Fam); [2010] EWCC 17 (Fam); [2010] EWCC 58 (Fam). 27 28

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B. Disposition Although the need to monitor parental behaviour is usually relevant regarding establishing the threshold, it is even more vital with respect to the decision about disposition, to which we now turn. In this regard, Hunt et al’s (1999: 142) comment seems particularly apt: ‘Most care proceedings, it was clear, are not primarily about getting a final order; they are about using the legal framework to produce a solution which is appropriate for the child’. Masson et al (2008: 63) attempted to identify and quantify the causes for delays in cases exceeding the 40-week goal.31 One of three factors occurred in threequarters of the quicker cases: (i) the parents did not participate; or (ii) the parents participated and co-operated; or (iii) there had been recent care proceedings regarding a sibling child. The most common reason for delay was time taken to complete reports (57.3 per cent), followed by reports ordered late in the proceedings (52.6 per cent), exploring family placements (46.2 per cent), testing placements with parents (41.5 per cent) and arranging residential assessment (39.2 per cent). Often more than one delay factor occurred in individual cases. We would underline the reference to reports ordered late in the proceedings, and exploration of family placements, since these can arise as a result of changes in circumstances which are not always predictable, especially in the case of families as unstable as those involved in such proceedings often are. Masson et al (2008: 43) note that the main reason why local authorities seek an interim care order late in proceedings is that a change in the care plan has been ‘precipitated by a change in the family’s circumstances’. This could be detected also in the BAILII judgments. There was a case where the grandparents, who had been looking after the children under a special guardianship order, had now reluctantly decided that they could no longer continue to do this;32 in another, a placement with an aunt and uncle had to be rearranged because they decided to emigrate;33 in another, the local authority applied for placement orders (for adoption) only after a series of difficulties had arisen with regard to the long-term fostering arrangements;34 and in another, where the children were rather older than usual for adoption, the authority thought they should nevertheless be given that opportunity, and time was needed for the meeting of the Adoption Panel and, thereafter, in looking for suitable adopters.35 None of these factors is expressly cited as a reason for delay by the Family Justice Review,36 unless the comment that ‘capacity issues in all parts of the system mean work is not always done when it should be’ relates to delays in completing 31   This and related research is discussed in a report for the Childhood Wellbeing Research Centre: Brown and Ward (2012). 32   [2010] EWMC 63 (FPC). 33   [2010] EWMC 49 (FPC). 34   [2010] EWMC 50 (FPC). 35   [2010] EWMC 79 (FPC). 36   See section III of this chapter.



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reports. The reference to ‘multiple experts’ may cover the circumstances where exploration of family and parental placements and residential assessments have occurred, but in that case it is not the reference to the expert as such that causes the delay but the decision that further options for the child, in particular, options involving maintaining or reviving its ties with its family, should be explored. As Masson (2008: 66) has commented: ‘The simple problem is that one approach to a particular case can be interpreted as delaying proceedings or as strenuously supporting the family (in partnership with it)’. It is at the ‘welfare’ stage, when the court considers what action to take, where battle is more likely to be joined, especially if the plan involves permanent removal of the child, for example, through a placement order for adoption. The court must be satisfied, by reference to the welfare checklist, that it is better for the child to make an order than not to do so, and to be so satisfied, it must know what the order entails. Furthermore, this is done within a framework in which the European Court of Human Rights has said that placement with a view to adoption ‘should only be applied in exceptional circumstances’37 that the general (though not absolute) goal must be family reunification,38 and that, taken as a whole, the measures must be ‘proportionate’.39 In fact, the Family Justice Review was well aware of this problem, and qualified its recommendation that proceedings should be subject to a six-month limit by proposing that, with the agreement of a Designated Family Judge, it might be exceeded in the following circumstances (Review Panel 2011: para 3.74): testing placement with parents or family; material and unforeseeable change of circumstances; unusual complexity; difficult threshold issues, involving complex medical issues for example; critical system failure, for example, failure to appoint a guardian for many months; or parallel criminal proceedings. Apart from delays in requesting and completing reports, which may be difficult to control, most of the main reasons for delay found by Masson et al (2008) mentioned above appear to be covered by the first ground (testing placement with friends and family), since late ordering of reports was probably usually related to such testing. This appears also in our analysis of online judgments. Judges and magistrates were very aware of the duty emphasised by the European Court of Human Rights40 of the necessity always to pursue the goal of family reunification where consistent with the child’s welfare. This was also seen in the extent to which

  Johannsen v Norway (1997) EHRR 33.   KA v Finland [2003] 1 FLR 696. 39   Re C and B (Care Order: Future Harm) [2001] 1 FLR 611. 40  eg K and T v Finland [2001] 2 FCR 673; KA v Finland [2003] 1 FLR 696; R v Finland [2006] 2 FCR 264. 37 38

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family members other than the parents were involved. In five cases,41 a child had been placed with grandparents, though in two this arrangement had broken down; in another case,42 an assessment for a possible placement with a grandmother was to take place under an interim care order; in another43 a special guardianship order was agreed where the child lived with a great-aunt; and a placement with the mother’s maternal cousin was approved; in another,44 the child was placed with the mother’s maternal cousin and her husband; in another,45 various relatives had unsuccessfully tried to look after the child; and in another,46 it was accepted that placement with the grandparents was the likely eventual outcome. Extensive efforts to place children with grandparents were made in another case, but the assessments found them to be unsuitable.47 However, the strongest evidence of acceptance of the goal of family reunification appears in the degree to which parents are monitored in order to establish whether they can safely be allowed to look after the children. In 8 of the 40 cases, the court took into account extensive assessments of parents: in one,48 the local authority had held off proceeding to adoption in the hope that the mother would turn herself around; in another,49 two assessments had been made of the parents, both of whom were extreme drug users; in a third, the mother’s negative assessment followed unsuccessful attempts by various relatives to look after the child;50 a fourth involved extensive assessments of a mother with learning difficulties;51 in a fifth, the court went through the psychologist’s evidence and, while refusing to discharge the care order, nevertheless encouraged increased contact, and said the authority must provide resources to allow this;52 in a sixth, the reports of two psychologists were carefully considered in a case where both the parents were in prison;53 in a seventh,54 the mother’s barrister challenged the assessment, but the judge went through it in detail and accepted it; in an eighth, the judge also went through the assessment in careful detail.55 In four cases the court continued to monitor the parent and child; in one, the parent was in a residential unit and the local authority had a supervision order;56

41   [2010] EWMC 19 (FPC); [2010] EWMC 63 (FPC); [2010] EWMC 56 (FPC); [2010] EWMC 45 (FPC); [2010] EWCC 44 (Fam). 42   [2009] EWMC 11 (FPC). 43   [2010] EWMC 7 (FPC). 44   [2010] EWMC 8 (FPC). 45   [2010] EWMC 67 (FPC). 46   [2010] EWCC 28 (Fam). 47   [2010] EWMC 74 (FPC). 48   [2009] EWMC 15 (FPC). 49   [2010] EWCC 31 (Fam). 50   [2010] EWMC 67 (FPC). 51   [2010] EWMC 71 (FPC). 52   [2010] EWCC 30 (Fam). 53   [2010] EWCC 54 (Fam). 54   [2010] EWCC 53 (Fam). 55   [2010] EWCC 28 (Fam). 56   [2010] EWMC 12 (FPC).



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and in another,57 it intended to continue to monitor the mother, who had an alcohol problem, under a care order, and in a third,58 it continued to monitor both parents under a supervision order59 and, in the fourth,60 under a care order. But courts were careful about drawing out the assessment process for too long. In four cases, the court refused to extend proceedings for further assessments. In one,61 the father seeking it had already been assessed, and a further assessment could have delayed things a further two years; in a second,62 the mother had undergone a full psychiatric assessment, but a parenting and risk assessment had not been fully completed through failure of the mother to co-operate: the judge was satisfied that there was enough information to make a decision without a further assessment; in the third,63 the father, who had committed offences and had an alcohol problem, sought a further assessment, but the court held this was unlikely to be successful and would not be in the child’s interests; in the fourth, the court also refused a father’s request for a further assessment, for similar reasons.64 Masson et al (2008: 64) refer to a ‘culture’ in which care cases are recognised by everyone working with them to be potentially very stressful – the court’s powers are ‘draconian’ and the parent’s circumstances dire. Decisions to grant care orders and approve adoption plans can be difficult to make without the clearest evidence, such as the clear failure by a parent of a residential assessment. In this context, commissioning additional assessments and examining the widest range of possible alternatives is not just a contribution to delay but a means of being satisfied that there has been no rush to judgment.65

This view is shared by the judiciary. Munby J used a striking analogy: With the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent . . . that he or she is to lose their child for ever.66

In re M67 the Court of Appeal overruled the decision of an experienced county court judge not to permit an additional assessment of an ‘extremely damaged’ mother, herself a minor who had been in the care of the authority for most of her life, and had failed a residential assessment of her parenting abilities and, in addition, had received a ‘stark report’ by a consultant psychologist on her capacities.   [2010] EWCC 6 (Fam).   [2010] EWMC 12 (FPC). 59   [2010] EWCC 8 (Fam). 60   [2010] EWCC 24 (Fam). 61   [2010] EWMC 74 (FPC). 62   [2010] EWMC 4 (FPC). 63   [2010] EWCC 16 (Fam). 64   [2010] EWCC 58 (Fam). 65   See also Pearce and Masson (2011: 60). 66   Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), para 150. 67   [2009] EWCA Civ 315. 57 58

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The child’s guardian accepted these reports. However, the Official Solicitor, representing the child, had requested an additional assessment. The judge agreed with the local authority that ‘enough was enough’. The Court of Appeal disagreed. That court thought the Official Solicitor, acting for an under-age client, had a duty to explore every avenue, and the judge should allow it. That view could, of course, be taken of any legal representative. Wall LJ added: 16.  I see this case, I have to say, in the wider context of the family justice system. Care and adoption orders are at the very extreme, indeed at the limits of, the court’s powers. There is a view abroad, a view which in my view is wholly erroneous that the court is simply a rubber stamp that approves the activities of social workers, who in turn are only too willing and anxious to remove children from their parents’ care. As I say, that, in my judgment, is a wholly fallacious view. However, its corollary is that the forensic process must be fair.

If the desired time constraints are to be achieved, Masson believes that there will need to be a ‘change in culture’, whereby ‘judges and lawyers will have to change their ways of working and their ideas about what amounts to a fair trial’. As a consequence, she predicts, the volume of information before the courts will reduce, and ‘there will be a reduction in the level of accuracy of decisions, leaving children unprotected, or in care, inappropriately’ (Masson 2012: 287–88). These are real grounds for concern. In presenting the judiciary’s response to the Family Justice Review, and in particular to the government’s proposals to enhance judicial control in public law cases, Mr Justice Ryder characterised the judge’s function at the disposition stage as ‘investigative’ and the ‘legal environment’ as ‘investigative’ rather than ‘adversarial’ (Ryder 2012: paras 46 and 47). As we have commented earlier, such labels are not very helpful in this jurisdiction, where judges are frequently actively and directly involved in the process. What is more important is that the balance between welfare promotion and procedural fairness is maintained. On this, Mr Justice Ryder observed: It is no doubt human nature to err on the wide of compassion but it is also fundamental to the judicial process that a judge will strive to make sure that the decision making process is fair. Fairness in children proceedings must balance the impact on the child of the case management decision which is asked for. The rights arguments that are pursued on behalf on parents will almost always have a concomitant argument that should be raised on behalf of the child which will often involve an analysis of the harm that will be caused to the child by an adjournment, a delay for another expert or a sub optimal placement or contact regime. (Ryder 2012: para 39).

While this statement can be seen as supporting that balance, it is important that it should not be interpreted as presenting the goals of seeking the child’s welfare and being fair to parents as necessarily incompatible. If some procedural ‘rights’ of a parent need to be modified to avoid clear risks to a child’s welfare, that should not be seen as necessarily causing unfairness to the parent because it would be unfair to a parent to risk the child’s welfare.68 This might seem to be a verbal point, but it is   See the discussion in the context of private law disputes in ch 8, section I.

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important that the courts do not undermine the value of fairness which Ryder rightly regards as fundamental to the judicial process. The goal should be to integrate this value with pursuit of the child’s welfare, not to marginalise it.

C. Experts The increasing use of experts in care proceedings has been a matter of comment after the Children Act 1989. Brophy and Bates (1998), drawing primarily on reports by guardians ad litem (now called children’s guardians) in the early 1990s, noted that the use of experts seemed to be increasing since the implementation of that Act in 1991. They were used mainly by local authorities, but their use by parents and guardians was growing. Leave of the court was required for the child to be examined, and usually the local authority requested this first. Parents did so later, but, to prevent over-assessment of a child, this normally took the form of ‘observation only’. The different parties tended to resort to experts from different ‘pools’, and the guardians thought that parents tended to use experts known for their ‘pro-rehabilitation’ views, but that this did not always work to their advantage. It was rare for an expert to be jointly appointed, largely because parents did not view those used by local authorities as being independent. There was a general feeling that it was in any case important for reasons of procedural fairness that parents be allowed to challenge evidence. Evidence some 10 years later showed that the ‘culture’ of using experts had taken a firm hold (Pearce and Masson 2011: 125–27). The Family Justice Review (Review Panel 2011: Executive Summary para 86) saw this as a major cause of delay, and recommended that legislation should state that judges should have regard to the effect of delay when considering whether to commission an assessment, and only do so when necessary to resolve the case and the information could not be obtained from the parties themselves. This recommendation was implemented by changes to Part 25 of the Family Procedure Rules 2010 and took effect from 31 January 2013. It is hard to see, however, how legislation of this kind will resolve the issues discussed earlier. The court’s primary concern is of course the welfare of the child. But that is to be seen holistically and in the long term. It is apparent that participants in care proceedings are very aware of the enormous impact care or adoption orders can have on the life of a child as well as the parents. And if one view is supported by ‘expert testimony’, but it is known that there is almost always room for doubt about such evidence, surely further expert testimony may be ‘necessary to resolve the case’. Although Mr Justice Ryder (2012: para 41) asserts that experts ‘are misused and over used’, the extent to which this is a serious problem is unclear. The medical profession is increasingly reluctant to become involved in these issues. We have referred above69 to the four BAILII cases where requests for additional assessments   See section IV.B of this chapter.

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were robustly turned down when it appeared to the court that they would serve no useful purpose from the point of view of the child’s interests. Furthermore, research by Brophy et al (2012) has indicated that the perception that large numbers of assessments by independent social workers are made in order to provide a ‘second opinion’ for parents on fairness grounds is mistaken. There is a range of reasons why time is spent making assessments, often by independent social workers. First, about 40 per cent of applications for care orders have not been preceded by a ‘core assessment’, largely because parents have not been co-operative. Hence many assessments are requested, often jointly by the parents and local authority, once proceedings have been initiated. But later assessments are sometimes ordered for a variety of other reasons. The major reason for making an additional assessment was where the previous assessment had not included this parent, or this parent and a new partner. Other reasons were that the previous assessment had become out of date, or was limited in other ways. In only one-third was the reason that the original assessment contested by a parent, but that was not based on an abstract ‘right’ to a second opinion, but on substantive criticisms of the original assessment (Brophy et al 2012: 24, 29).

D.  Narrowing of Issues As stated earlier, the Family Justice Review (Review Panel 2011) sought to lighten the task of courts by proposing that the courts need to satisfy themselves only with respect to the following elements of a care plan: (i) planned return of the child to their family; (ii) a plan to place (or explore placing) a child with family or friends; (iii) alternative care arrangements; and (iv) contact with the child’s birth family to the extent of deciding whether it should be regular, limited or none. While this focus might reduce some matters that are presently considered, for example, some details of contact, it is evident that evaluation of a planned return of the child to the parents or wider family or friends, and even the basic outline of contact arrangements, may require the kinds of assessments that presently account for extending the duration of care proceedings, and would be a ground for extending the statutory limit under the Review’s proposals.70

E.  Speeding up Adoption As well as expressing concerns about the time care proceedings were taking, the Coalition government expressed determination that the adoption process should be completed more quickly than was currently the case, publishing an Action Plan for Adoption: Tackling Delay in 2012 (Department for Education 2012a). This 70   The draft legislation implementing this proposal seeks to distinguish between the ‘permanence’ provisions of a care plan and other provisions. The courts would have a duty to consider the former, and discretion to consider the latter. The Justice Committee was concerned that contact issues fell into the latter group (House of Commons Justice Committee 2012: para 86).



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drive to increase adoption mirrors a similar policy of the Blair government (Eekelaar 2003). It should be viewed with considerable caution. It must be seen against a background that adoptions of children in care in the United Kingdom have historically been high relative to comparable countries (except the United States).71 Also, while the Action Plan states that ‘a review of international evidence on attachment concluded that those who were adopted before 12 months of age were as securely attached as their non-adopted peers, whereas those adopted after their first birthday showed less attachment security than non-adopted children’ (Department for Education 2012a: para 27) it does not mention that the same study concludes: ‘this meta-analysis suggests that adopted children can overcome early adversity and risks and form secure attachments as often as their normative counterparts. The same was true of foster children’ (van den Dries et al 2009: 418, italics provided). Similarly, a reference in the Action Plan to a comparison between long-term foster care and adoptive outcomes (Department for Education 2012a: para 29) does not mention that the study concluded that ‘in many respects, children in stable, long-term foster placements may do as well as those who are adopted’ (Biehal et al 2010: 7). The Action Plan relied heavily on research by Ward et al (2012) that showed that ‘almost all professionals did everything they could to keep families together and parents were given repeated opportunities to prove they could look after a child’ (Department for Education 2012a: para 28). Indeed, the researchers went further and commented that social work decisions ‘almost always’ assume the children will return home, that ‘the courts often appeared to be more focused on ensuring that parents’ rights were respected than that the children’s welfare was promoted’ and that there was ‘scrupulous attention given to ensuring that the birth parents were treated fairly’ (Ward et al 2012: 150, 154). Perhaps surprisingly, these features were regarded by the researchers, and the Action Plan, not as virtues but as problems to be remedied. Here is another reason for caution. The courts, and, it seems, social workers appear to take seriously the well-established position of the European Court of Human Rights that family reunification should be the normal goal when intervention has been necessary. Although that court usually expresses this in terms of safeguarding the parents’ ‘right to family life’, this is because parents are the complainants before the court. But the goal could, and arguably should, equally be expressed in terms of a child’s right to family life with his or her parents or wider family as this is likely to be in his or her best interests. This outcome is not to be abandoned lightly. Attention to fairness shows appreciation of the requirements of procedural fairness expected under human rights standards. None of this implies that improvements and adjustments cannot be made that will benefit children. Mr Justice Ryder (2012) has set out a framework for examining how this may be done. Research can improve social work judgements 71   See the evidence in the Prime Minister’s review of adoption: Report from the Performance and Innovation Unit (2000), Annex 4.

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about when family reunification is likely to be successful, and how to manage the process (Farmer 2012). Our point, in the context of this study, is that history has shown many examples where convictions about children’s welfare have led to harmful actions. Mechanisms for serious scrutiny that direct attention at the circumstances of the child in question, informed but not dictated by knowledge about the generality of cases, and respecting the value of procedural fairness for all parties, are essential to prevent such cases recurring. The Action Plan largely seeks to hasten adoption by encouraging adoption agencies (usually local authorities) to reach quicker decisions that a child should be adopted outside the court context, and act on those decisions more quickly, for example, by placing a child with prospective adopters before a court had made a placement order (Department for Education 2012a: paras 59–63). This could create risks because, until a placement order is made (either with the parents’ consent, or after the court has dispensed with that consent) the parents may remain engaged with the child, and may contest the adoption. However, it may be possible to accelerate some of these early decisions, perhaps by using the techniques of ‘concurrent planning’, which treats prospective adopters as foster carers while exploring the chances of returning the child to the birth parents, on the understanding that they will adopt if the child is not returned. But it is important that such a process is conducted within a legal framework, such as an interim care order, because of the conflicts inherent in seeking family reunification while at the same time preparing for the child’s adoption, and that the ethos of fairness and scrutiny is not compromised.

V.  The Benefits of Reasoned Judgments We have seen that the Family Justice Review (Review Panel 2011) insisted on the importance of ‘robust’ judicial case management for care proceedings. It believed that there should be strong judicial control over timescales. Two cases discussed in chapter six72 showed that judges were also concerned that public authorities had properly discharged their duties in preparation for the cases (such as making appropriate efforts to contact and obtain information about a child’s family members prior to an adoption application, and to inform a mother of her right to participate in such proceedings). But apart from such supervision over the preparation of the case, the judge has to ensure an outcome (even though it may be a provisional one) that is, and is seen to be, justifiable in terms of the law. The judgment itself, we suggest, is an important and usually necessary feature of the judicial process. Firstly, it explains to the parties, and also the public, the legal and rational basis for the outcome. In this way not only is policy made apparent, and   See ch 6, section III.A.

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therefore open to discussion and criticism, but also mistakes revealed, for correction either in the case itself through the appeal process or in later cases. Secondly, it provides a discipline for the judge that aids the reasoning process. Thirdly, and by no means the least important reason, is that the judgments may be necessary in order to provide each child subject to a care order with a record they can access later in their life that explains what occurred to them at this crucial stage in their life. However, in order for this to be effective, the judgments should be provided to local authorities to form part of their records of the case, which they are expected to retain for 75 years.

A.  Analysis of Judgments To explore this further, we analysed the BAILII judgments we selected from the judgments published online as explained above, and classified the judgments into three types. The first type is where facts and reasons supporting a conclusion are set out in full (‘Full’ judgments). The second is where the court does not set out the evidence in detail, but gives a summary of it, usually referring to further documentation that contains the details, sometimes saying that these documents are appended to the judgment (‘Abbreviated’ judgments). The third is where the judgment makes only cursory reference to the facts or reasons to support a finding, the court contenting itself with saying that it is satisfied that the case is made out (‘Summary’ judgments). Different types might be used for separate issues within a single case. For the purposes of our analysis, the issues in most of the cases divide into making a finding on the threshold conditions, and deciding what order to make, so in our analysis a single judgment might be classified as (for example) taking abbreviated form regarding the threshold finding but being full regarding disposition (see Table 7.1). Table 7.1  Types of judgment by issue and by court Judgment Type

1 (Full) 2 (Abbreviated) 3 (Summary) Total

Threshold

Issue Order

Total

13 11 5 29

26 5 8 39

39 16 13 68

County Court 12 3 3 18

Court FPC

Total

15 12 5 32

27 15 8 50

i.  Threshold Conditions Findings regarding the threshold conditions were supported by Full judgments in nearly half (13) of the 29 cases in which a finding on threshold conditions was made. Abbreviated judgments supported a further 11 such findings, and Summary judgments the remaining five.

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ii.  Making the Order As regards making (or not making) an order, which was an issue in all 40 cases except one (where it was held that the threshold criteria were not established), Full judgments were made in two-thirds (26) of such decisions, Abbreviated judgments in five and Summary judgments in eight. It was much more likely that the threshold finding would be supported by an Abbreviated judgment, giving the gist of the circumstances, or a reference to further details in a ‘bundle’ or some other documentation, than the decision about the order. This is quite natural, given that in many cases the threshold is not opposed. Judges may feel that it is unnecessary to rehearse these agreed facts, and wish to proceed to determine what steps should now be taken. But even in the six applications in the county courts which were opposed, Full judgments were made with regard to both the threshold finding and the order in two;73 in three74 the Full judgment was made only regarding the order. In the sixth,75 the application was not opposed by the mother, but opposed by the father, and an Abbreviated judgment made on both issues. In the FPCs, Full judgments were given regarding the threshold in two contested applications for interim care orders,76 one of which dismissed the application. The other went on to give a Full judgment regarding the order.

iii. Courts As might be expected, FPCs were less likely to make Full judgments than the county courts. Of the 32 decisions on threshold and disposition they made, almost half (15) were supported by Full judgments, just over a third (12) by Abbreviated judgments and 5 by a Summary judgment. In comparison, of the 18 findings (on threshold and disposition) made in the county courts, two-thirds (12) were supported by a Full judgment, with three each in the other two types.

iv.  Summary Judgments There were five Summary judgments in the FPCs,77 and three in the county courts.78 Two of those in the FPCs involved applications for care or placement orders and three for other types of order. All of these were neither agreed nor opposed. Three were from the same court. It seemed that at least in these cases the court’s practice may have been different from that in other courts, the court seeing little reason to set out extensively the ‘facts’ when everyone was agreed what to   [2010] EWCC 53 (Fam); [2010] EWCC 31 (Fam).   [2010] EWCC 16 (Fam); [2010] EWCC 30 (Fam); [2010] EWCC 28 (Fam). 75   [2010] EWCC 58 (Fam). 76   [2010] EWMC 67 (FPC); [2010] EWMC 66 (FPC). 77   [2009] EWMC 7 (FPC); [2010] EWMC 12 (FPC); [2010] EWMC 48 (FPC); [2010] EWMC 56 (FPC); [2010] EWMC 63 (FPC). 78   [2010] EWCC 7 (Fam); [2010] EWCC 10 (Fam); [2010] EWCC 24 (Fam). 73 74



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do and the intervention did not involve a care or placement order. The judgments certainly look rather cursory compared to the others. Interestingly, the three county court Summary judgments came from the same court area. They did involve care orders, but again, none were contested.

v.  Reference to the Children Act Checklist All judgments (except one) either expressly or implicitly stated at some point that the welfare of the children was the court’s paramount concern. The exception was the case where the court held that the threshold criteria had not been fulfilled, for the duty to consider the welfare of the children only arises when deciding what steps to take should the criteria be satisfied. Many judgments expressly stated that the court was taking into account the considerations set out in the ‘welfare checklist’ set out in the Children Act 1989, as it is required to do,79 often going through them seriatim. All the FPCs did this (except in the ‘threshold’ case just mentioned). The county courts did this less often: in 9 of the 16 cases. An explanation may lie in the likelihood that many FPCs may set out their judgments following a template that demands such a reference, and that Circuit Judges do not do this. There is no reason to believe that Circuit Court judges are unaware of the checklist, and they may find it unnecessary to recite it in ritualistic fashion.

vi.  Human Rights Thirteen of the 24 FPC judgments made express reference to the Convention on Human Rights, including KA v Finland80 (which establishes the duty to seek family reunification where appropriate), and the principle of proportionality. Only 5 of the 16 county court judgments did this. Again, this is explicable on the basis that the FPCs were following a template.

vii.  Wishes of the Child The first item on the ‘checklist’ refers to ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding’.81 We have seen that FPCs stated that they had taken into account the checklist in all but one case, and the county court judgments in 9 of 16 cases. So the courts acknow­ ledged awareness of the relevance of the children’s wishes, even if they did not always set out what they thought they were. In one case82 the judge had seen the child ‘face-to-face’ and this had assisted in making the decision.

  Children Act 1989, s 1(4)(b).   [2003] 1 FLR 696. 81   Children Act 1989, s 1(3)(a). 82   [2010] EWCC 53. 79 80

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B. Evaluation The Ministry of Justice’s evaluation of the project was primarily concerned with the usefulness of publishing these judgments online in the context of the risks and costs of doing so. As stated earlier, it is suggested that the production of judgments in these cases has value in itself, quite apart from whether they appear online or not. In listing these values below, we do not wish to be seen as directing judges how they should act in every case. There may well be circumstances where, in their assessment, the recitation of certain matters in a judgment might do more harm than good. However, we believe that all these values are important, and judges should be mindful of them when deciding the form their judgments should take.

i.  Structuring the Decision Process While these decisions essentially combine findings of fact with judgments about the appropriate action to take in the light of those facts, they are made within a legal framework. The framework lays down steps that must have been taken by the authorities in the preparation of the case, in particular in dealing with the child and the other persons concerned. It sets out the standard of proof and the factors that must weigh with the judge when making the relevant decisions. These matters apply whether the applications are opposed or not. While experienced judges might be assumed to be aware of the details of this framework, this will not necessarily be true for lay justices. The use of a template in such circumstances is therefore extremely useful, and is common for the Lay Bench. But one could go further, and suggest that it may also be useful for judges. Some will inevitably have less experience than others. But, if one might venture to say so, even experienced judges might overlook relevant matters, perhaps under pressure of work. So setting out reasons according to a template can be a useful discipline. It is important that decision-makers should be constantly reminded of the factors in the welfare checklist, and the proportionality principle of human rights law. Of course this is not to advocate a mechanistic process over common sense and flexibility. But it could be argued that reference to standard factors usually has more benefits than disadvantages.

ii.  Respect for the Parties One powerful reason for setting out reasons in full, following a given structure, is that doing this shows respect for the parties. The judge may be familiar with the proper matters to consider, and may consider them, even unconsciously. But the parties probably will not be. It is important for them to perceive that the judge has addressed the matters that are required in law to be incorporated into the reasoning process. Even if the parties are unlikely to read the judgment, this interest of theirs should be respected. ‘Respect for something or someone lies in acknowledg-



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ing that a feature of that entity has value in and of itself, the value usually not being assessable in monetary terms’ (Eekelaar 2007: 80). So a person does not lose their right to respect by being unconscious, or even after death. One of the key values of a properly functioning legal process is that it demonstrates respect for a nation’s citizens by allowing them to present their case and by articulating the grounds on which state actions affecting them are taken. If someone’s relationship with their child is being permanently, or significantly, broken, respect for the value of that relationship demands that the legal justifications for doing this are manifest and accessible to the persons concerned should they seek to know them.

iii.  Empathy and Encouragement While the notion of respect, though of great importance, may seem somewhat abstract, applying it can have specific consequences. One is that in some cases it enables the judge to empathise with the dilemma many parents may feel. So it is not uncommon for judges to commend a parent for making the decision not to oppose an order. In one case,83 a Circuit Judge said: I cannot imagine, and I am sure that none of us in this room can imagine, how difficult it has been for (the mother) to come to that decision, but what she has done is put her children fairly and squarely first. She has put her children in front of her own desire to look after them. She is to be given the utmost credit for that and her children in due course, I am quite sure, will understand what her position was. She recognises that she has to make some changes to her life, and she is to be commended for that. I am told that she now has accommodation. She wants to resume her education and get a job. I hope that, with some assistance in due course, she will achieve those aims and be able, in some years’ time, to be a parent to further children.

Parties may even be commended for opposing an order, as a sign of being willing to accept responsibility, even if this is unrealistic. So, in another case,84 the judge said of a father who had not seen his children for a year: However, (he) made an impressive effort to be present in court at this final hearing. He got up at 4am, caught the 6am train here and then carefully explained his position . . . he has begun the process of turning his life around and I was impressed by his bravery in coming to court and his determination to see things through.

Here we see judges playing a role that goes beyond adjudication, as we suggested in chapter five, was commonly the case. This could be said to be some kind of ‘helping’ role, in the sense of providing some kind of solace, or even personal advice, in an attempt to help a party to become reconciled to the outcome of the case.

  [2010] EWCC 58 (Fam).   [2010] EWCC 42 (Fam).

83 84

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Public Law Children Cases

iv.  Confirmation of Impartial Assessment The role of scrutiny of the actions of the local authority is central to the judiciary in care cases. It is therefore important that it is clear from the record that the judge has been satisfied that the statutory grounds for intervention have been complied with. This is one reason why it is desirable to refer expressly to factors such as the welfare checklist and human rights. One county court judge went further and expressly referred to the scope for diversity in children’s upbringing.85 As stated earlier, in some cases the contents of the evidence are set out in some detail in the judgment, whereas in others judges may say that they have read the submitted evidence, and refer to its location. There are a number of factors that may reasonably influence which course is followed. These include the complexity of the issues, time constraints and perhaps also sensitivity of the details. Nevertheless we suggest that usually at least the gist of the facts should be stated, as an indication of the facts that the decision-maker has judged to be particularly salient to the decision. If the decision includes a finding that the threshold criteria have been met, whether contested or not, making this evident allows the stand­ ards that are being applied to justify state intervention to be visible both publicly and to the parties. It also reinforces the fact that these are being assessed independently of the local authority. The formulation, ‘we adopt the guardian’s assessment as our own’, used by one Lay Bench, and unaccompanied by detailed exposition, is not very satisfactory. But the words of one county court judge sum up the role of the judge as the impartial entity described in chapter two as central to the application of justice: ‘I do not simply or merely endorse the parties’ agreement. I come to my own conclusion (that the threshold is satisfied)’.86

VI. Reflections Mary Hayes (2009: 86) has remarked that ‘the lack of accountability of local authorities to the higher courts was a striking feature of pre-1989 child care law’. She recalled that children could be separated from (and denied contact with) their parents for 28 days under a ‘place of safety order’ without the right to be heard or to appeal. The parents did not have the status of parties to care proceedings; they acquired procedural rights (for example, to meet allegations against them) only gradually. The child was a party, and sometimes actually present in court, however inappropriately.87 That was because the procedural model was based on cases where a child had been apprehended for doing wrong. So it was assumed that the child would be represented by its parents, however inappropriate this was if the   [2010] EWCC 44 (Fam).   [2010] EWCC 17 (Fam). 87   See ch 4, section VI. 85 86

Reflections

153

parents were accused of harming the child. The parents might be formally disqualified from representing the child (itself an unclear and unsatisfactory procedure), but then they lost any opportunity to appeal (as only the child could do this). Also, not being parties, the parents had no entitlement to legal aid, so, if the lawyer they had originally approached obtained legal aid, he would be formally the child’s lawyer, not theirs. If they wanted a lawyer, they would need to pay for this. But even if they could afford this, until 198688 they were still technically not parties to the case, unless they had been disqualified from representing the child. In a study in 1983, Dingwall et al (1983, 1995) observed that courts in fact tended to allow the parents to participate by various devices. Often the clerk of the court, or even the solicitor for the child, would ask questions on their behalf, creating conflicts of interest, confusion and general frustration. As Dingwall et al (1983, 1995: 177) observe: ‘Where it was the parents who originally approached the child’s solicitor he often seemed to retain a feeling of residual loyalty, although they had ceased to be his clients’. Another consequence of the ‘delinquency model’ was that the local authority had very limited rights of appeal if it lost its case. Hayes also notes that a guardian ad litem was originally only appointed where an application to discharge a care order was unopposed by the local authority, a precaution introduced to prevent a child being returned into a dangerous environment without a proper check, as had occurred in the Maria Colwell case in 1974 (Hayes 2009: 91–92). Hayes notes various other significant defects in the law that were addressed either by the Children Act 1989 or by contemporary legislation, for example, concerning parental rights resolutions, access of parents to children in care and the use of the wardship jurisdiction. We refer to these matters because an attenuated historical memory can diminish understanding of the significance of values that may be at stake when present institutions are evaluated. In the case of care proceedings prior to the reforms associated with the Children Act 1989, their cardinal failing was mainly the lack of respect paid to parents that was their due through the provision of due process. That also applied during their engagement with welfare authorities prior to the court proceedings. But the welfare of children could also be compromised, partly as a consequence of insufficient attention to the parents’ position, but also because of inadequate scrutiny of the actions of welfare authorities (see Hayes 2009: 102– 09; Butler-Sloss Report 1987). It is against this background that the current state of the family justice system should be viewed. The Coalition government’s response to the Family Justice Review is subtitled: ‘A system with children and families at its heart’. It follows many recommendations of the Review that seek to improve management and efficiency in the operation of the court system. In the case of care proceedings, these are largely directed at attempts to reduce delay, and the draft Children and Families Bill 2012 sets out a 26-week statutory limit within which such proceedings should be completed. Of course there would be exceptions, and courts would   Children and Young Persons Act 1986.

88

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Public Law Children Cases

be able to allow eight-week periods of extension where they considered this to be necessary ‘in order to resolve the proceedings justly’, though this was to be seen as ‘exceptional’ and to require ‘specific justification’. There is a danger that rigid bureaucratic measures could either lead to rushed decisions or additional use of court time as applications for extensions are made and argued over, and the Justice Committee recommended that judges should be permitted to avoid these requirements in cases that they identify in advance are likely to take longer (House of Commons Justice Committee, 2012: paras 43–44). Some of the reasons for the time public law cases take (‘delay’ is a loaded word) were considered earlier in this chapter. We noted that some of the most important causes of ‘delay’ could not be easily overcome by managerial means alone. But there are causes which could be addressed by such means, or greater resources, such as the time taken to complete reports. The government claimed that Cafcass had demonstrated an improvement in ‘productivity’ since 2010 (Ministry of Justice and Department for Education 2012: 16). However, concerns about the performance capacity of Cafcass remain. In 2011 the Justice Committee on the Operation of the Family Court commented on the shortage of children’s guardians, backlogs in case allocation, and recommended less bureaucratic management so that officers could spend more time with children. Also in 2011 a survey of judges in London revealed that nearly a third reported serious problems in the quality of, or delay in obtaining, Cafcass reports (Brophy and Cover 2012). Brophy and Cover reiterate the well-known information that families that become involved in care proceedings have multiple personal and economic problems, that only the most serious cases, usually containing more than one category of ill-treatment, are brought before the courts, that these families are likely to suffer most in an adverse economic climate, and that the social, health and legal services they need will be reduced. It is hard to see how simply passing a law that cases must go through courts more quickly will adequately address these problems. There must also be concern that the values of the legal process, namely, holding public authorities to account, showing respect for all individuals by treating them fairly and upholding the human rights primacy of seeking family reunification may be under threat. Proudman and Trevena (2012) argue that, instead of seeking to accelerate the processes by which children are permanently removed from their parents, policy-makers should invest in support services which can assist parents who become involved in these proceedings to overcome, or better manage, their problems, thereby keeping their children. We do not accept their characterisation of the process as designed or applied with the intention of punishing parents. There is a profound moral distinction between removing a child as a punitive measure, and doing so in the belief that it is necessary in order to protect the child. But there is room for genuine debate about whether resources are being properly used to avoid this happening, and real concern that the ethos that respects these values of the legal process are seen as a source for criticism, and that solutions are seen almost entirely in terms of managerial efficiency. This

Reflections

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parallels the devaluation of the role of private law in family cases remarked on earlier.89 No doubt present procedures and structures can be improved and the welfare of children thereby enhanced. The Justice Committee was impressed by steps taken by Hampshire County Council and the Tri-borough90 Pilot in London which aimed to identify cases likely to last longer, and improve processes generally. Mr Justice Ryder (2012) has developed a process for improving the training of family judges and the management of the courts. It is encouraging that the draft legislation implementing the Review’s recommendations that expert evid­ ence be restricted and that care proceedings should be completed within six months allows departure from these constraints if the court considers this is necessary to enable it ‘to resolve the proceedings justly’.91 It is important that the matters discussed in this chapter are taken into account if and when those provisions are applied. But a more imaginative approach could be provided by the Family Drug and Alcohol Court (FDAC), which is based upon some American models. Appreciation of the high number of care proceedings in which parents were involved in substance misuse (up to one-third in some areas) led to the establishment of the court on a trial basis in London in January 2008. The court hears care proceedings, but they differ from ‘normal’ care proceedings in the following respects. It is serviced by two dedicated judges who can provided judicial continuity in all cases; there is a specialist multi-disciplinary team attached to the court which assesses the circumstances, develops an intervention plan, links the parents to other services and reports regularly to the court; there is a dedicated pool of children’s guardians who are appointed as soon as a case is received, and who appoint their own solicitor; and regular review meetings are held between the judge and the parents, without the presence of lawyers. Originally, mentors were appointed for the parents in each case, but it did not prove possible to maintain this consist­ ently. An evaluation of the project (Harwin et al 2011) compared outcomes with a sample of similar cases in ‘ordinary’ care proceedings and found that a higher proportion of FDAC than comparison parents had ceased misusing substances by the end of proceedings, more FDAC parents engaged with substance misuse services in the first six months and a higher proportion remained engaged throughout the proceedings; and that more FDAC than comparison families were reunited with their children. The children of 39 per cent of FDAC mothers (16 of 41) were living at home at final order, compared with children of 21 per cent of comparison mothers (4 of 19). Most users reported positively on their experiences. Interestingly, the average length of proceedings (one year) was the same in both the FDAC and the sample of cases from the ‘normal’ courts. In fact, when children were reunited with their families, this took longer in the FDAC (50 weeks   Seech 1, section IV.   Hammersmith and Fulham, Westminster and Kensington and Chelsea. 91   Draft legislation on family justice, Provisions about Family Justice, cls 3(6) and 4(5). See House of Commons Justice Committee (2012: 11–12). 89 90

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Public Law Children Cases

against 42 weeks), though where they were not returned home, the alternative arrangement was made more quickly (51 weeks against 58 weeks) (Harwin et al 2011: 72–74). This might suggest that the FDAC procedures persisted for longer than in ‘normal’ courts in trying to effect reunification (for example, by parental engagement in a treatment programme) and this could result in reunification. Equally, it could indicate that when the FDAC was able to identify that reunification was unlikely (for example, because the parent refused to co-operate), alternative arrangements for the child could be made more quickly. There were also more court hearings in the FDAC, though these were for shorter periods of time, and involved fewer persons (for example in the regular reviews without lawyers). Taking into account these variations, the evaluation concluded that the FDAC cases were less expensive than the ‘normal’ cases with respect to court hearings and out-of-home placements, and that the ‘expert’ activities of the FDAC team were less expensive than the cost of independent experts in ordinary proceedings. Although the evaluation is based on a small sample, the findings are suggestive that a strategy that is focused almost exclusively on speed is overly simplistic. It may well be worth taking more time to investigate promising family reunification options, while less promising cases can be dealt with more quickly, provided they have been thoroughly evaluated at an early stage. The pilot may also have been fortunate in acquiring a special team from the Tavistock Portman NHS Foundation Trust and the children’s charity, Coram. The Family Justice Review regarded the pilot as promising, and the Coalition government agreed, saying ‘further roll-out will be considered in the light of the ongoing evaluation of the London pilot and will depend on finding a sustainable funding model for the programme’ (Ministry of Justice and Department for Education 2012: 65).

8 Private Law Disputes Involving Children I.  Children’s Welfare and Justice to Parents In a fine review in 2000 of the way English law approached disputes involving children, Michael Freeman observed that it was not until the end of the 1960s that the child’s welfare began to prevail over ‘the right of the unimpeachable parent’ (Freeman 2000: 442). ‘In 1945,’ he wrote, ‘disputes about children were about rights’, and cited a 1962 judgment in which Lord Denning MR stated the case as being ‘a matter of simple justice’ between mother and father.1 However, after the House of Lords in J v C2 proclaimed in 1970 that the child’s welfare in such cases was the first and paramount consideration, Ormrod LJ asserted that the question was not what the ‘essential justice of the case’ requires but ‘what the best interests of the child demand’.3 Freeman later recounts a 1977 case where the welfare officer concluded that it was not in the child’s best interests to be placed into a situation which was for him ‘fraught with anxiety and insecurity’ (the father had smacked him during contact), and the judge declined to order direct access to the child by the father (but permitted indirect contact). It was said in the Court of Appeal that ‘this is yet another example where the welfare of the child requires the court to inflict injustice upon a parent with whom the child is not resident’.4 So, are the family courts there, as one commentator has put it, ‘to help children, not to get justice for parents’?5 The suggestion seems to be that putting the child’s welfare first and doing justice to parents are necessarily incompatible objectives. The suggestion is, however, misleading. This can be shown by remembering that, although Freeman correctly identifies the 1970s as the period during which the child’s welfare began to be the dominant criterion for deciding disputes between parents regarding their children, consideration of children’s interests had begun to influence such decisions much earlier. Although from early times the common law gave a father an absolute right to possess his legitimate children, by the beginning of the nineteenth century the Chancery courts were prepared to   Re L [1962] 1 WLR 886.   [1970] AC 668. 3   S (BD) v S (D) [1977] 1 All ER 656. 4   Re J [1994] 1 FLR 729, at 732. 5   Deborah Orr, The Guardian, 11 November 2011. 1 2

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deny a father’s attempt to enforce this through habeas corpus if this would put the child in bodily danger.6 Those courts developed the concept of the welfare of the child, even though they tended to interpret the child’s interests as being served by upholding fathers’ rights (Eekelaar 1986). This qualification of a father’s rights by the child’s interests was reinforced by the Custody of Infants Act 1839, allowing custody of a child under seven to be granted to the mother, provided she had not committed adultery, and in 1873 this was extended to children under 16, and the adultery bar removed.7 Later, the Guardianship of Infants Act 1886 required courts, when deciding between parents, to ‘have regard to the welfare of the infant, and to the conduct of the parents, and to the wishes of the mother as of the father’. This left the husband’s authority untouched, but allowed courts to weigh the opinions and behaviour of each parent and the child’s welfare in each case. These developments show that the earlier, almost unchallengeable ‘right’ of fathers to possess their legitimate children was modified, first by importing references to the child’s interests (though in limited conditions), and later by including reference to the mother’s wishes. Could it be said that these changes were achieved at the expense of ‘justice’ to fathers? Some may well have claimed this, but that would be to assume that the distribution of legal rights should remain immutable. It was said in chapter two that one central feature of justice involves assessment of the fairness of an outcome according to stated criteria, and that, in the case of family justice, those criteria are provided by the law. There can, of course, be a debate at a different level as to whether the legal criteria are themselves ‘fair’. Such arguments must appeal to certain moral principles, coupled perhaps with political arguments about the law-making process. But the mere fact that a (former) legal right is qualified by reference to other interests (or rights) by an impartial adjudicator with the authority of law cannot in itself sustain a charge of injustice. It is therefore wrong to think that a parent necessarily suffers injustice where a court properly allows the welfare of a child to defeat the parent’s claim, unless the implication is that it is wrong that the law should have stipulated that priority. But such an implication is not usually intended. Some circumstances could occur, however, where supporting the child’s interests could appear to conflict with acting justly to a parent. This could arise where the circumstances that make it contrary to a child’s interests to live with or have contact with one parent have been brought about, not through force of circumstances, when the parent might be said to have experienced misfortune rather than injustice, but through the reprehensible behaviour of the other parent. In such a case, giving priority to the children’s interests seems to come at the cost of acting unjustly, and therefore to violate another important value. We should consider, however, whether Ronald Dworkin (2011) provides a way of escaping this dilemma. Dworkin claims that values do not in fact conflict but that, properly interpreted, all values are integrated and mutually supporting. (See also Smith   R v Manneville (1804) 5 East 221.   Custody of Infants Act 1873.

6 7



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2012.) In this context, it might be possible to hold that, with much reflection, we could interpret treating the (wronged) parent justly as being to follow the child’s best interests: in effect, that it would be more unjust to that parent to act against the child’s best interests than to follow the child’s best interests at the apparent expense of justice between that parent and the reprehensible one. Perhaps this conclusion could be reached by invoking Dworkin’s principle that this is the best way to respect the ‘wronged’ parent’s interest to live their life well, presumably, in this case in the knowledge that their interests had not been put above those of their child. The conflict between justice and best interests is therefore only apparent, not real. There is attraction in this position. However, it has to face the difficulty that the same argument could be used in favour of the opposite result. It might be argued that the best interests of the child could be interpreted as including acting justly with regard to the child’s parents. Perhaps, though, this does not refute Dworkin’s claim that the two values are integrated and mutually supporting. We may simply need to decide, on the facts, which solution better promotes the goal of assisting the persons involved to live their life well. Alternatively, we may prefer an approach closer to the perspective of Amartya Sen which is content to see the values at stake as being independent but non-commensurable. However prioritisation between them in specific circumstances can be achieved by reasoned argument without compromising the stature of either of the values vis-à-vis the other (because they are non-commensurable) (Sen 2009: 394–96). Whichever approach we use, we may (usually) conclude that, given the vulnerability of children, the best interests of the child should be followed and justice between the parents held to be sufficiently provided by, for example, giving full consideration to their views. In so doing, we do not diminish the respect we need to pay to parents by treating them justly. Just as in public law cases when the welfare of children and fairness to parents seem to conflict,8 it is necessary to seek an outcome that can be characterised as an integration of the values represented by the welfare of the child and justice between the parents.

II.  Custody Dispositions by Courts prior to the Children Act 1989 The Guardianship of Minors Act 1971 provided that where the ‘legal custody or upbringing of a minor’ was in question, the court was to ‘regard the welfare of the minor as the first and paramount consideration’. If the parents were in agreement, the divorce could not be completed unless the judge certified that the arrangements for the children were ‘satisfactory or the best that [could] be devised   Discussed in ch 7, sections IV and VI.

8

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in the circumstances’.9 On what might constitute the ‘welfare’ of the child the law was silent. Of course judges drew on conventional ideas when applying the test, and these can be found in their judgments. They include ideas about gender roles, for example, that younger children and older girls should be with their mother and older boys with their father, that siblings should not be separated, that the arrangements should reflect the woman’s role as a homemaker and the man’s as an income earner, that it was undesirable that a man should contemplate spending a long time on state benefit while looking after his children, that a child was better off with two parental figures than one, that alternating custody was dangerous, and that children should not be in contact with a homosexual parent or parental figure (see Bradley 1987; Eekelaar 1991b: 124–25). While it is probably possible to detect a general world-view from such fragmented statements, much depended on the character of individual judges, whose personal view might be crucial to the outcome of individual cases. A broader picture of the way the family justice system dealt with cases involving custody of children during the 1970s can be obtained from a study based on court files from a random sample of cases in the United Kingdom including one or more children under 18 from 10 courts in different regions comprising 652 cases in England and Wales and 203 in Scotland (Eekelaar and Clive 1977). This showed that, in England and Wales at the time of divorce, in 73 per cent of cases the children were living with the wife, in 10.3 per cent with the husband, and in 6.6 per cent with both. In 3.7 per cent of cases they were divided between the spouses and in 4.8 per cent they were living elsewhere (for example, with grandparents). In 1.2 per cent of cases the children were in care. Access by the absent parent was exercised regularly in 44 per cent of cases, and apparently not in 30 per cent. Where children were with the wife, 10 per cent of husbands expressed an intention to apply for custody, but only 3.5 per cent actually carried this through. In no case was a child moved back to the father as a result of a contest. Where the child was living with the husband, the wife expressed an intention to apply for custody in 34 per cent of cases, and 18 per cent carried this through (12 cases). But in only two cases was a child moved back to the mother as a result of a contest. In all, it seemed that 6.0 per cent of cases were contested regarding custody and 0.9 per cent regarding access. Overall, in only 0.6 per cent (0.8 per cent if Scotland is included) of cases were children moved as result of a court order. That is seven cases in all. In four, the children moved from one parent to another (always from husband to wife), and in three from a parent to a third party. It seemed, therefore, that regarding where the children lived, almost universally things were left to stand as they were when the parents separated, which usually meant they stayed with the mother. If they were with the father, mothers were more likely to contest this than fathers were if they were with the mother, and were more likely to succeed if they did so, though if a mother challenged a father with whom the children were living, she was more   Matrimonial Causes Act 1971, s 41.

9



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likely to lose than to win. This could be summed up as favouring the ‘status quo’. As regards contacts with the non-resident parent, while 44 per cent saw the children regularly, 30 per cent did not see them at all. But this was not because it was disallowed. Access was barred in only 2.6 per cent of the English and Welsh cases.

III.  The Children Act 1989 However cases may have turned out, it was not difficult to criticise the legal framework. At that time, the courts were able only to order ‘custody’ (almost always to one parent alone) and either say nothing about the other parent, or grant them rights of ‘access’, either specific or simply ‘reasonable’. Divorce proceedings were often preceded by orders regarding maintenance and custody in magistrates’ courts. In magistrates’ courts, the printed form on which the court order was recorded contained an express statement that ‘reasonable access is to be granted to the defendant’, which had to be specifically deleted if the court wished to deprive the parent of the right. In the divorce courts, it was necessary to write in any provision for access. That may have been why magistrates’ courts seemed to make provision for access more frequently than the divorce courts. But since the absence of an express provision for access did not prevent it from being exercised, divorce courts varied wildly in the extent to which they wrote in the provision. It was also unclear what the legal effect of the granting of ‘legal custody’ to one parent was on the legal rights regarding the child of the other. Many fathers may have felt that such an order deprived them of their status. This matter was resolved in the Children Act 1989 by using the concept of parental responsibility, meaning ‘all the duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property’,10 and conferring this on both a child’s parents if they were married, but on the mother only if not. This joint responsibility was not dissolved by separation or divorce. Courts could make directions on practical matters by means of ‘residence’, ‘contact’, ‘specific issue’ and ‘prohibited steps’ orders. Later, the Family Justice Review thought that the use of ‘residence’ and ‘contact’ orders encouraged disputes, and proposed replacing them with ‘child arrangement’ orders (Review Panel 2011: Executive Summary paras 112–13). The Coalition government agreed (Ministry of Justice and Department for Education 2012: para 77). The persistence of parental responsibility after divorce meant that both parents retained authority to make decisions concerning the child on matters like medical treatment and education even though they had divorced and were not living together, or even with the child. In practice, of course, if a child is not living with a parent, the opportunity to make such decisions will not often arise. The Act specific­ ally absolves anyone with parental responsibility from a duty to consult others who   Children Act 1989, s 3(1).

10

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also have such responsibility in the way they exercise that responsibility,11 though on some matters the consent of all such people must be obtained. The open-ended nature of the ‘welfare’ principle had also come under criticism. It was pointed out that the community, through its laws, needed to give at least some guidance to judges as to where a child’s welfare lay.12 The Law Commission (1986) considered that there were two ways of doing this. One was to establish a set of statutory objectives, or guidelines, to be used in determining what constitutes a child’s best interests. The other was to set out a number of factors that the court was obliged to consider when making its judgment. The Commission rejected the first method, saying it was wrong to approach a case on the basis of an assumption about how it should be concluded. That could place the party against whom the assumption ran at an unfair disadvantage. It preferred the strategy of setting out a checklist of factors to be taken into account when making the decision on the stipulated basis that the child’s welfare must be the court’s ‘paramount consideration,’ and this is done in section 1(3) of the 1989 Act. In making the relevant decisions, the court must have regard to: (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. The court must also consider that delay is likely to prejudice the child’s welfare and should not make an order at all unless it considers that doing so would be better than making no order at all.13 These provisions provide some indication of how the legislature perceives the child’s welfare. But it does not exclude reference to other factors, nor demonstrate any priority among them. Nevertheless, they do provide a method of structuring a decision and a discipline in making the decision by repeatedly drawing the attention of the decision-maker to matters that could be important in the par­ ticular case. It has probably had the effect of concentrating attention more on children’s views than was formerly the case, at least when the issue has to be determined by a court. Inevitably there has been discussion about whether courts still operate certain presumptions about how a child’s ‘physical, emotional and educational needs’ (mentioned in the checklist) are best served.   Children Act 1989, s 2(7).   See eg Eekelaar (1984b). 13   Children Act 1989, ss 1(2) and 1(5). 11 12



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The matter arose in the Supreme Court re G (Children) (Residence: Same-sex partner)14 where the issue was whether it was right to move children, aged seven and five, from their biological mother to her former partner of a lesbian relationship after that relationship broke up. They had been brought up by both women since their birth. Moving the children would have been a significant breach of the ‘status quo’ in any event, although the lower courts found reasons justifying this. The crucial issue was the relevance, if at all, of the fact that the children would be moved from their biological mother to someone who, although in every other way a parent to them, was however not biologically connected. Baroness Hale, giving a judgment with which all members of the court agreed, referred to the Law Commission document mentioned above, and clearly rejected any suggestion that ‘there should be some form of presumption in favour of natural parents’.15 She distinguished three forms of ‘natural’ parenthood. One was through the provision of gametes; another was by giving birth, and a third was by nurturing the child, forming a bond which has been called ‘psychological parenthood’.16 In this case, all three elements came together in the biological mother, which, ‘while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for (the children) now and in the future’.17 This, together with other elements, weighed against removal of the children from her. The case therefore is a powerful indication that, in the Children Act 1989, the child’s welfare is not to be determined on the basis of presumptions which assume certain favoured outcomes in specific factual situations, but on a rounded consideration of what is best for each individual child according to criteria set out by Parliament and other factors of varying importance that can be reasonably concluded contribute to the child’s well-being. The matter was put beyond doubt by the same court in re B (A Child)18 where the court reversed rulings returning a four-year-old boy who had been living with his grandparents to his father. The Supreme Court held that the lower courts had allowed the idea that the child had a ‘right’ to be brought up with his natural parent to distort its duty to do what was best for the child. Lord Kerr, giving the unanimous judgment of the court, said: All consideration of the importance of parenthood in private law disputes about resid­ ence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.19

  [2006] UKHL 43.   [2006] UKSC 43, para 36.   The term derives from Goldstein, Freud and Solnit (1979). 17   [2006] UKSC 43, para 46. 18   [2009] UKSC 5. 19   [2009] UKSC 5, para 37. 14 15 16

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The reasoning in re B (A Child) has been criticised on the ground that it rejects the relevance of reference to rights, whether of parents to possess their children, or of children to be brought up with their parents (Bainham 2010). Such rights are expressed in the European Convention on Human Rights and the UN Convention on the Rights of the Child, although they are always qualified by the overriding requirement to implement the best interests of the child. Those rights must surely be recognised by the law. But in this context they are always subject to what is best for the child. It might have been possible for the Supreme Court to have acknowledged those rights, for that would be to recognise specific values that persist across time and remain undiminished whatever the outcome of any particular case. With regard to the child’s rights, this would have upheld the importance of focusing on the child’s viewpoint. With regard to the parents’ rights, that would have recognised their special position and the need to treat them fairly. As regards the facts of that case, the Supreme Court could have held that the welfare test should have been applied in the way it explained, without implying any dim­ inution of the respect owed to those rights, and to which the rights were sub­ ordinate. It could have kept open the possibility of review at a later date when the child would be in a better position to express views that could affect the outcome (see Eekelaar 1994c). Presumptions are, however, a different matter, since these seek to point to a favoured outcome in a particular dispute. The Supreme Court made it clear that these have no place in the application of the welfare test. Nevertheless, there are well-understood assumptions about what arrangements are likely to benefit children in normal circumstances. One is being brought up by a ‘natural’ parent. Another is maintaining contact with both parents who have separated.20

IV.  Contact between Parents and Children after Separation A.  Loss of Contact between Children and Fathers It has been mentioned above that it seemed from court records studied in the 1970s that about 30 per cent of parents lost touch with their children after divorce (Eekelaar and Clive 1977). In 1997 Maclean and Eekelaar (1997: 121)21 found that, of formerly married parents interviewed, 32 per cent stated that either there had never been contact between the child of the marriage and the non-resident 20   Re L (A Child) (Contact: Domestic Violence) [2000] 2 FLR 334. Herring (2011: 536) summarises the position: ‘There is no presumption in favour of contact, although its benefits will readily be found in an appropriate case. In each case the courts will weigh up the benefits and disadvantages of contact’. 21  249 parents were interviewed who were screened through a national omnibus survey and reported being parents of a child who did not live with both its parents.



Contact after Separation

165

parent, or that contact had ended later or become severely disrupted. For parents who had separated after unmarried cohabitation, the equivalent figure was 37 per cent. That study did not separate reports from resident and non-resident parents (most were from parents with whom the child was living), but Peacey and Hunt (2009) did so and found that, of a sample of separated parents, 35 per cent of those living with the child and 15 per cent of those not living with the child said that no face-to-face contact was taking place with the non-resident parent. Those parents are, of course, overwhelmingly fathers. A large survey by the Office for National Statistics in 2007–08 had made very similar findings: Over a quarter (28 per cent) of children in the resident parent sample and a seventh (14 per cent) of children in the non-resident parent sample had no direct nor indirect contact with their non-resident parent (Lader 2008: 8). Australian data in 1997 also showed that 30 per cent of non-resident parents had seen their children less than once a year or not at all (Parkinson (2011: 71) and a similar proportion of separated fathers appear to lose contact with their children in France (Vonèche and Bastard 2007) and in the United States (Amato et al 2009). Without allowing for differences between married and unmarried parents, as a ‘ball-park’ estimate, it seems that in many countries, in something close to onethird of cases children either lose contact completely with the parent who leaves the household, or the contact is very slight, and that this has been the case over a considerable period, though the proportion is probably falling. The reasons for this fall-off of contact are not well understood. It does not follow, of course, that all these fathers have no wish to maintain contact. Many find that supervening events, such as geographical distance and new family commitments, have made it too difficult (Dudley 1991; Parkinson 2011: 71–72). Vonèche and Bastard (2007) suggest that the reasons why some fathers maintain contact and others do not may be related to the nature of the family relationships prior to the separation, and HarrisShort (2011) has suggested that the relatively high incidence of contact in Sweden may be related to policies encouraging a high degree of involvement by fathers in ongoing family life. Maclean and Eekelaar (1997) found a direct and simple association between the likelihood of maintaining contact and the length of time the parents had lived together with the children prior to separation.22

B.  Growing Intensity of Contact However, even if a large minority of fathers either lose contact completely, or find it difficult, for whatever reasons, to maintain it more than occasionally, this should not divert attention from the large number who do maintain contact, and seem to be doing so more intensely. While Eekelaar and Clive (1977) reported that 44 per cent of non-resident divorced parents exercised contact regularly, 20 years later Maclean and Eekelaar (1997: 121) reported that 69 per cent of   This association is supported by Aquilino (2006).

22

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Private Law Disputes Involving Children

formerly married parents maintained regular contact with their children. (It was lower for formerly cohabiting parents: 45 per cent, and for those who had never lived together: 35 per cent.) Later the focus of the pressure for change moved from the issue of contact to the concept of ‘shared parenting’. This is generally understood as arising when children spend more than 30 per cent of their time with each parent. This is a natural development of the growing intensity of involvement by non-resident parents. Peacey and Hunt (2009) report that, in those families where contact was taking place, 10 per cent of parents with whom the child was living said it occurred every day, and a further 42 per cent that it occurred at least once a week. Later information, based on reports by ‘non-­ resident’ parents, suggested an even higher level of contact. 14.6 per cent of all such parents reported that it occurred every day; 21.9 per cent that it occurred several times a week; 19.2 per cent that it happened at least once a week and 3.1 per cent saying care was shared equally (Fehlberg et al 2011, citing Ermisch et al 2011). This is not substantially different from reports from other countries. In the United States, the proportion of children maintaining contact with non-resident fathers rose from 63 per cent in 1976 to 71 per cent in 2002. However, of those who maintained contact, the proportion seeing their father at least once a week rose from 18 per cent in 1976 to 31 per cent in 2002 (Amato et al 2009). In Australia there is evidence that, in 2009, in 16 to 17 per cent of separated families children live in ‘shared care’ arrangements (Smyth 2009; Kaspiew et al 2009). It seems likely that the extent to which children remain with the mother after parental separation, and largely lose contact with their father, coupled with the increased intensity of involvement by those fathers who do maintain contact, or wish to do so, led to the growing dissatisfaction fathers’ groups have recently shown with family justice systems. The law was perceived at best as allowing a particular view of the child’s interests to override justice to an objecting parent, and at worst of bias towards mothers. We have mentioned earlier the gender (and other) stereotyping uttered by judges prior to the passing of the Children Act 1989, though we also observed that the most common attitude of the courts in disputed cases was to allow things to remain as they stood when the parents separ­ ated. They were not actively intervening on the side of mothers against fathers. Indeed, the 2008 research into the success of applications for contact orders showed that non-resident applicants (usually fathers) were more likely to achieve their objectives than resident parents (usually mothers). The authors found that 79 per cent of all completed cases in which the outcome was known ended with an order or agreement for face-to-face contact; and remark that ‘since at the point the application was made to court contact was only taking place in just over a quarter of all the cases (28 per cent) this should be seen as a substantial achievement for the court process’ (Hunt and Macleod 2008: 240). However, this did not alter the fact that most children stayed with the mother and many fathers, for whatever reason, did not press for contact with the child, so that children’s relationships with their fathers faded away, if they had ever started at all.



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V.  Legislative Responses A.  The United States: Wisconsin This was not simply a United Kingdom issue. It was foreshadowed by acrimonious rhetoric in the United States described thus by Coltrane and Hickman (1992: 403): Fathers’ and mothers’ groups offered compelling stories about the injustices suffered by their constituents, but only the fathers’ rights groups repeatedly advanced claims based on the language of entitlement. The term fathers’ ‘rights’ reflects this, and it is how the men’s groups labelled themselves and were addressed by others. The mothers’ groups, in contrast, were rarely referred to as ‘rights’ groups, and tended to advance their claims through a rhetoric of ‘needs.’ Mothers’ claims often employed the language of loss, invoking notions of purity and innocence and calling for altruism and social responsibility. In addition, mothers’ groups used a language of threatened health or endangerment, demanding protection for children at risk.

Despite this general characterisation, fathers’ groups also claimed that the injust­ ices (as they saw it) in the system harmed children, and mothers’ groups also alleged injustice, often related to non-payment of financial support. During the 1970s some American states attempted to address these issues through encouraging joint custody orders and developing formulae for enhancing judicial enforcement of child support obligations (Chambers 1979). Joint custody primarily meant that ‘legal responsibility’ was to continue to be shared between parents after the divorce. Whether it meant that (what was called) ‘physical’ custody would be shared, varied between jurisdictions (Folberg and Graham 1979). The development in Wisconsin was similar to that in many other American states (Parkinson 2011: 45–47). Until the 1970s, in Wisconsin, ‘care and custody’ could be given to one party only, but in 1977 courts could authorise shared care if the parties agreed and the court thought this was in the child’s best interests.23 In 1987, the term ‘custody’ was limited to legal custody (the right to make various decisions concerning the child), and ‘physical custody’ referred to with whom the child lived. Courts could order joint legal custody if the parties agreed, or, if this would be in the child’s best interest and the parties were considered able to cooperate in the future decision-making, even if one did not agree. Courts were required to allocate periods of physical custody with both parents unless ‘after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health’.24 In 1999, the legislature enacted a presumption of joint legal custody (rebuttable on evidence of violence or abuse), required divorcing parents to submit a ‘parenting plan’ to the court, and enacted that courts should schedule living arrangements in a way that ‘allows the child to   Wis. Laws 1977, Law 105.   Wis. Laws 1987, Law 355.

23 24

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have regularly occurring, meaningful periods of physical placement with each parent and that maximises the amount of time the child may spend with each parent taking into account geographic separation and accommodations for different households’. But at the same time courts were to ‘consider’ each case on the basis of a list of 17 considerations, and treat the safety of the child and other parent as ‘paramount concerns’ in cases of violence and abuse.25 While not exactly creating a presumption in favour of maximisation of sharing time between parents, the law certainly can be described as seeking to promote that result. The proportion of placements that were ‘shared’ was 32 per cent in 2001, compared to only 2 per cent in 1980–81. In Wisconsin, Melli and Brown compared parents with children under shared placement arrangements (defined as more than 30 per cent of time with each parent), and under a sole placement arrangement (where one parent had 70 per cent or more). Among other things, they found that, while family-types were similar for both groups of families (for example in numbers and ages of children), ‘the shared-time fathers (and also mothers, to a lesser degree) were more affluent, better educated and had higher status occupations than other parents’. The mothers were more likely to report having a friendly relationship with the father than the sole placement mothers (50 per cent so reported compared to 38 per cent), and 90 per cent reported the child’s emotional health to be good. However, the sample was drawn from all separated parents taken from court records, including those ‘where the post-divorce parenting arrangement was desired by both parties as well as those negotiated by their lawyers or, in a very few cases, decided by a judge after trial’ (Melli and Brown 2008: 235). The cases decided after trial are not separately analysed in the report. High levels of co-operation were therefore to be expected for the sample as a whole, and the researchers conclude: Finally, the discussion . . . should not be taken as an endorsement of, or recommendation for, a statutory presumption of share custody on divorce . . . This article points out that family roles are changing and that role change is reflected in the increase in postdivorce shared time. But that is not a brief for a legislative presumption of shared time . . . the arrangements they made for shared time may be more a result of social change than of legislative direction. (Melli and Brown 2008: 261).

B.  Sweden and Denmark In Sweden it became possible in the 1970s for divorcing parents to agree to joint custody of their children, thus allowing them to share decision-making functions even though the children lived with only one of them. In 1982 this became the standard position unless specifically overridden. But it still could not arise if one party opposed it. This changed in 1998, when courts were permitted to order joint custody against the wishes of a parent. Reacting to evidence that courts were   Wis. Stat. 767.24

25



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imposing joint custody inappropriately, the law was changed again in 2006 requiring courts to consider how far parents are likely to co-operate before making a joint custody order, and also requiring them to consider risks of any harms that might arise for the child and family members (Singer 2008). Possibly as a result of the use of joint custody, the incidence of children alternating their home between their parents in Sweden is relatively high (21 per cent in 2005), and courts sometimes order that arrangement even against the will of one parent. This practice can cause considerable practical difficulties, and it has been recommended that it should only be done if parents are able to co-operate and the children desire it. It has also been noted that there is a notable lack of evidence about the children’s responses to these arrangements (Singer 2008). However, Parkinson (2011: 115) cites a Swedish report of 2004 including responses from 22 young people in shared care arrangements [which] also found a range of reactions to shared care. The interviewees were generally satisfied with the living arrangements with interviewees valuing the opportunity to spend a great deal of time with both parents. However, they also indicated a downside, in particular the feeling of rootlessness deriving from the need to pack up and move between homes. Some would have preferred to have one primary abode but feared to say so for fear of upsetting whichever parent they did not want to live with. Like the children and young people in the study by Smart et al, some young people also expressed frustration at the lack of flexibility, feeling ruled by fixed schedules. The young people who were most satisfied with an equal time arrangement were those who had parents who were flexible, could co-operate, and lived near each other.26

In Denmark an enactment of 2007 similar to the Swedish law of 1998 that encouraged courts to order that children’s time was shared equally between parents even if they did not agree was later seen to be harmful to children, and its repeal was agreed in 2012.27

C. Australia As in England and Wales, where the Children Act 1989 sought to rationalise the conceptual muddle around ‘custody’ and ‘access’, the initial reforms were responses to lack of clarity and possible imbalances in the legal positions of parents after separation. The Family Law Reform Act 1995 therefore departed from the ‘custody/access’ model inherited from England and Wales, and introduced a concept of ‘parental responsibility’, exercisable jointly and persisting after separation, absent a court order to the contrary, and residence and contact orders. But whereas the Children Act 1989 in England and Wales adopted a ‘checklist’ approach to the application of the welfare principle, the Australian legislation (while retaining a checklist) went some way to setting out what was considered to   See also Newnham (2011).  The Copenhagen Post, online, www.cphpost.dk/news/national/parliament-end-50-50-child-­ custody-rule. 26 27

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constitute the child’s best interests, expressed in the language of rights and responsibilities: Family Law Act 1975, s. 60B (1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):



(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and (c) parents share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children.

Whether section 2(a) and (b) created a ‘presumption’ in favour of contact is unclear (Chisholm 1996). The ‘rights’ referred to could hardly be strict legal rights, because, if that were so, a parent who left the child would be under a duty to return to it, and the law would need to enforce the duty; or, at least, the law would need to seek to compel non-residential parents to see their children who were not living with them. It is unlikely that either of these is intended. Therefore, especially as they are referred to as ‘principles underlying the objects’, these rights are better understood as creating a framework for applying the welfare test from an assumed viewpoint of the child. But the welfare test remains the overriding imperative, allowing the child’s assumed viewpoint to prevail only where consistent with it or where its application is very uncertain. The legislation also required judges to ensure that their order would not expose people to an ‘unacceptable risk’ of family violence. Nevertheless, it appears that in practice the provisions led to a higher incidence of contact even in circumstances where the child’s welfare might be at risk, and to increased litigation (Rhoades 2000). In the confusion, fathers’ groups remained dissatisfied. There was a further review by a parliamentary committee which, while recommending against a presumption of joint custody, nevertheless recommended that there should be a presumption of ‘equal shared parental responsibility’ and that equal shared residence (physical custody) should be ‘considered as a starting point for discussion and negotiation’ (Rhoades and Boyd 2004). The Family Law (Shared Parental Responsibility) Act 2006 therefore introduced a presumption that ‘equal shared parental responsibility’ (meaning that the parents are bound to consult on any ‘major long-term issue’, defined in the Act, and to make a genuine effort to agree about it) is in the best interests of children, though it can be rebutted and does not apply in cases of family violence or child abuse. It underlines the goal of maintaining shared parenthood by



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expanding the objects set out in section 60B(1) of the 1995 Act (above) which now reads: (The objects are) to ensure that the best interests of children are met by (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

It is to be noted that the presumption is expressed as one about what is in a child’s best interests, and refers only to parental responsibility, not to living arrangements. However, once equal parental responsibility is ordered, courts are expressly required to consider whether it is further in the child’s interests to spend equal time or a substantial and significant time with both parents. This was clearly intended to affect outcomes, and has done so. Research has shown that, although shared time arrangements by agreement continued to rise gradually, the legislation resulted in a marked increase in judicially imposed shared time (from 4 per cent to 34 per cent of cases where contact hours were specified); that it has encouraged increased focus on parents’ (especially fathers’) rights over children’s best interests and made mothers reluctant to disclose violence and abuse (Fehlberg et al 2011). The increase in judicially imposed shared care outcomes caused concern, since where this involves sharing care arrangements (defined as five overnight stays per fortnight), they are likely to cause children distress where they follow from rigid patterns such as are often found in court orders, and to be harmful in any case to children under four years old (McIntosh et al 2010; Parkinson 2011: 116; McIntosh and Smyth 2012: 176). Trinder (2010) summarised the results of the Australian research as far as it concerned the litigated cases: The McIntosh study does raise some concerns about the well being of children in all forms of high conflict shared care. However it is the children in rigid shared care arrangements that cause most concern. Of course, these forms of rigid arrangements are far more likely to result from court orders. The recent Australian experience provides a clear warning against a statutory presumption based on any timeshare arrangement, and particularly not one based on shared care. The research reviewed here does not support the view that by simply dividing children’s time between their parents, children do better or are happier. What matters more is the quality of parenting and the ability of parents to focus on their children’s needs, regardless of the quantity of the child’s time that they secure. However, by sending policy messages that shared care is the best option, what has occurred is a shared care paradox where the greatest expansion of shared care has been in precisely those families where shared care is least likely to work and most likely to cause most problems for children.

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The Australian research also found that where parents agreed shared care, those with safety concerns were no less likely than other parents to indicate that they had shared care time (Kaspiew et al 2009: 233). This showed that expectations about achieving the perceived social goal of shared care would frequently overcome a parent’s concerns about the child’s safety. It also seems that the goal of maintaining a ‘meaningful relationship’ dominated that of ensuring the child’s safety, leading to a further legislative amendment to ensure that safety took priority over maintaining a ‘meaningful relationship’ (Fehlberg 2012). Other evidence shows that, while children of separated parents often say they would have preferred to spend more time with both parents than they actually did, older children who did this can often be dissatisfied with such arrangements, preferring them when the parents were flexible and co-operative. (Parkinson 2011: 114–16). Carol Smart (2000: 314) summarised the responses of those she interviewed: The majority of the children who were being ‘shared’ knew how important this equal apportionment of time was for their parents and the extent to which it was heavily invested with both an ideology of gender neutrality and emotional equivalence. But this made it particularly hard for children to alter the arrangements if they did not suit them. They found that they had to take a stand against a powerful philosophy, which insists that equal shares are fair, and also against the emotional strain of upsetting the balance between their parents. In this respect, being shared on a fifty-fifty basis could become uniquely oppressive. This was reflected in Karl’s response when we asked him what he would wish for if a wish could be granted. He replied that he wished that one parent would just disappear after divorce.

D.  England and Wales We have seen that the strategy of the Children Act 1989 is that courts should not use presumptions about how determinations regarding the welfare of a specific child should be made. In 2010 a ‘Shared Parenting Orders Bill’ was introduced into Parliament that would have required a court to presume ‘that it is in the best interests of the child for both of the child’s parents to have a full involvement in the upbringing of the child’, and, furthermore, that the means of implementing the presumption, the ‘shared parenting order’, must require that the child ‘must spend a substantial and significant amount of time with both parents’. That Bill made no progress in Parliament, but another Private Member’s Bill, introduced by Charlie Elphicke MP (the Children’s Access to Parents Bill) in March 2011 would have required courts, local authorities and other bodies, when determining or enforcing issues of residence and contact, to operate under the presumption that the rights of a child include the right to grow up knowing and having access to and contact with both of the parents involved in the residence or contact case concerned, unless exceptional circumstances are demonstrated that such contact is not in the best interests of the child; to create an



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offence if a relevant body or person does not operate under or respect such a presumption; and for connected purposes.28

The intention to depart from the approach of the Children Act 1989 is plain. The matter had in fact arisen earlier. During the 2000s this debate centred on the issue of contact, with demands ranging from a presumption that contact between a child and the non-resident parent should take place, to a presumption of equal division of the child’s time between the parents. The government resisted such calls, instead focusing on improving procedures in highly conflicted cases (for example, through in-court conciliation) and new powers of enforcement, including giving courts powers to impose community service, curfews and compensation for breaches of a contact order (Children and Adoption Act 2006, ss 1–5; Trinder 2007; Kaganas 2010; Maclean 2011: ch 4). But the question of ‘shared care’ was revisited by the Family Justice Review. The Review looked carefully at the experience in Australia, discussed above, rejected in its Interim Report the idea of a statutory presumption in favour of shared care, and in its Final Report (Review Panel 2011: paras 4.27–28) stated that any legislation that might risk creating an impression of a parental ‘right’ to any particular amount of time with a child would undermine the central principle of the Children Act 1989 that the welfare of the child is paramount. We also believe that legislation is a poor instrument for social change in this area. We were told in Sweden for example that shared parenting arrangements after separation have been increasing, but only because they are now more common before separation. So we maintain our view that the focus should instead be on supporting and fostering a greater awareness of shared parental responsibility and on the duties and roles of both parents from birth onwards. Legislation is not the means through which to achieve this.

The government, however, took a different view, believing that there should be a ‘legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests’. But it required further time to consider what form such legislation might take (Ministry of Justice and Department for Education 2012: paras 61–62). In 2012 it therefore issued a Consultation Paper (Consultation Paper 2012: para 3.1) stating that legislation to promote shared parenting was needed because (while) the benefit of ongoing involvement with both parents is already factored into these decisions, . . . it is not explicitly stated in the legislation that guides this process (the Children Act 1989) (and) this has contributed to a perception that the law does not fully recognise the important role that both parents can play in a child’s life.

The Paper set out four ways in which this might be done: the first was a presumption favouring ‘involvement’ of each parent in the child’s life, the second a principle to similar effect, the third referred to a ‘starting point’ of this nature and the fourth  http://services.parliament.uk/bills/2010-11/childrenaccesstoparents.html.

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would add a new consideration to the checklist of factors to be taken into account by courts deciding these questions. This insistence on the use of legislation as a means to improve the extent to which non-resident parents remain ‘involved’ in the lives of their children after separation is puzzling in view of the apparent distrust of the law, and legal processes, in ‘private’ family matters shown elsewhere by government.29 Nor is there any evidence that legislation of the kind proposed would have any effect on the apparent extent of lack of contact between non-resident fathers and their children, because only about 10 per cent of arrangements regarding children result from adjudication (Lader 2008: 12) and in about three-quarters of cases where contact is contested in court, a final order for contact is made (Cassidy and Davey 2011: 10). In a recent survey of 398 young adults who had experienced parental separation in their childhood, only 8 per cent attributed responsibility of loss of contact to the residential parent, while 62 per cent attributed this to the non-­ residential parent (Fortin et al 2012). Nor is there any evidence to support a belief that introduction of the proposed legislation will affect the behaviour of the majority of fathers who lose or greatly diminish their contact with their children after separation without engaging in litigation. In fact, the evidence indicates that sharing care is more likely to be harmful where the parents are in conflict30 and that this type of legislation could make people feel pressured to agree shared care arrangements even though they are worried about the safety of the child. Nevertheless, the government decided to introduce legislation that would create a statutory presumption that ‘involvement’ of each parent in the life of the child concerned ‘will further the child’s welfare’ unless ‘the contrary is shown’. However, a parent would not benefit from this presumption if ‘there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement’ (Department for Education 2012b; House of Commons Justice Committee 2012: paras 38–52). But even if the presumption applied, it could be rebutted simply by showing that involvement of that parent would not be in the child’s interests, without needing to show that it risked actually harming the child. However, as the Bill is currently drafted (February 2013), it is uncertain how the presumption would apply if the court has to choose between two particular proposals that envisage differing degrees of ‘involvement’. Perhaps the court would simply evaluate which proposal it thought was better for the child, making the presumption irrelevant, or it might presume in favour of the proposal envisaging the more significant degree of involvement of a parent unless this was shown not to further the child’s welfare. That would be a departure from the current application of the ‘best interests’ test. There must be a danger that this added complexity will cause confusion,   See ch 1, section IV.   See section V.C of this chapter.

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and be seen as strengthening the bargaining position of non-residential parents (usually fathers). This could be particularly damaging in view of the withdrawal of legal aid in private law family matters. We have insisted on the importance of having a legal framework within which such issues can be resolved. But the extent to which the details of these personal matters can be dictated by the law is a matter of judgement, as was discovered during the last century with regard to the law of divorce. The greater detail of proposed ‘family arrangements orders’ and parenting plans, coupled with the possible effects of the presumption mentioned above, creates a risk that post-­ separation arrangements concerning children might become over-regulated, unduly restricting children, and either pushing those who can afford it into legal disputes, or exposing those who cannot to undue pressure from the stronger party. It is important therefore to be aware of the way legislative provisions work in practice, and to pay careful attention to the evidence available in assessing its probable consequences.

VI.  Justice and Decisions Involving Children It was stated at the beginning of this chapter that it was a mistake to think that giving priority to the child’s welfare is necessarily inconsistent with doing justice between parents. This was because the dispute involved not only the parents but also the children, and the law subordinated their rights to the welfare of the children. They therefore suffered no injustice when that priority was applied. However, while the priority does not necessarily conflict with justice to a parent, it might do so in some circumstances. As the example of Karl in the quotation above from Smart’s research31 shows so vividly, the children’s welfare could be at odds with the interests of one or both of the parents. And as often occurs after separation, and would occur if Karl had his wish that a parent would disappear, the interests of one are better served than those of the other. This might be because the one whose interests come out better has earned the result, perhaps by devoting more time to the child. Or it might be by force of circumstances, for example, because that person is better able to align their interests to the welfare of the child. In such cases the other person may be the victim of misfortune, but not of injust­ice. Is it different if the impact on the parents’ interests is the result of reprehensible behaviour by one of them? In the discussion of justice in chapter two, it was noticed that Amartya Sen argued that fairness was not solely to be judged by the nature of an outcome, but that the process by which that outcome was reached was also relevant. You needed to look at the ‘comprehensive outcome’. So, in our example, if the outcome that best supports the child’s interests is at the expense of the interests of one parent over the other, and that has been brought about through reprehensible behaviour by that other parent,   See section V.C.

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the ‘comprehensive outcome’ is not just. Of course, whether behaviour is reprehensible involves a complex moral judgement.

A.  The Enforcement Paradox This poses a serious problem for any family justice system. The problem is aggravated by a specific feature of contact and shared parenting which we call the ‘enforcement paradox’. This arises in the following way. It is widely accepted that it is generally in children’s interests to retain contact with a non-resident parent. However, it is also widely agreed that this beneficial effect is related to the quality of the contact rather than its frequency. The meta-analysis by Amato and Gilbreth (1999) is commonly cited as establishing this, but many other studies have shown it too. The evidence is summarised by Michael Lamb (2007: 16–17): As in non-divorced families . . . the quality of continued relationships with the parents – both parents – is crucial. Stated differently, and succinctly, the better (richer, deeper, and more secure) the parent-child relationships, the better the children’s adjustment, whether or not the parents live together.

This statement refers, of course, to the relationship between the children and their parents, not to the relationship between the parents. However, the relationship between the parents can also be relevant. In 1995, Janet Johnston summarised the American studies then available comparing children in sole physical custody arrangements with those in joint physical custody as showing that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents. In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes. Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. (Johnston 1995: 420).

A careful review in 2007 concluded that ‘there is strong empirical evidence that, for children from high conflict families, arrangements involving frequent contact with both parents are more likely to be harmful rather than helpful’ (Shaffer 2007: 306). This does not mean that any degree of parental conflict is harmful. In particu­ lar, it should not be concluded that the stress of litigation in itself is likely to have lasting ill-effects on children (Lamb: 2007). However, since only about 10 per cent of separations result in court proceedings, disputes that come to court usually indicate serious underlying conflict between the parents, and it is that conflict rather than the litigation alone that probably has the adverse effects on children.



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The enforcement paradox arises because where the outcome that is generally thought to be beneficial for children cannot be achieved by agreement but only through decision by the courts, achieving that outcome is likely to become harmful to them, because by definition those are cases where the conflict between parents is the most serious. The problem is compounded where the outcome thought to be best for the children is being defeated by the refusal of one parent to accept the judicial outcome. Put this way, it can be seen that the issue may be not only one of justice for one of the parents, but of achieving the priority of securing the best interests of the children. If the attempt to secure the best outcome for the children in fact damages their interests, might it not be better to settle for the second best outcome for them, even if it is unfair to one of the parents?

B.  Confronting the Enforcement Paradox How can family justice systems deal with this problem? One strategy is to proclaim that evaluating people’s motivations in this kind of issue is impossible within the family justice system, and therefore that the morality of the actions of one party vis-à-vis the other falls outside its scope. This has been done to a large degree in two other areas of family law. One is the granting of divorce. Before the reformed divorce law came into effect in 1971, the issue whether a divorce would be granted or not, and if so, to whom, was dependent on judgments by judges of the merits of the conduct of the parties towards each other. One of them needed to be at fault. Even if that was the case, the petitioner must not have acted in an equally abhorrent way against the (guilty) respondent, or indeed have transgressed other moral codes (Eekelaar 1991b: ch 2; 1994b). Now, while the opportunities for assessment of reprehensibility of behaviour have not entirely disappeared from the law applicable for granting divorce, such cases are extremely rare. No-fault divorce is common in many jurisdictions. This does not mean that people are not ill-treated by their divorcing partners. Rather, it reflects social decisions that the judgments that must be made in assessing motivations of these kinds either cannot be made within the family justice system, or can only be done at the cost of aggravating hostility and therefore defeating other significant goals of the family justice system, which include promoting agreement and distributing resources fairly. The fact that divorce may be granted in favour of a ‘guilty’ party against an ‘innocent’ one may be unjust with regard to certain moral standards, but is not unjust with respect to the overall purposes of the divorce law. The other area where this strategy has developed concerns financial provision after divorce. Behaviour may affect an award, but it must be severe, and courts discourage general assessments of marital behaviour in making such arrangements. The reason is similar to the justification for no-fault divorce: such investigations are unsuitable for the legal process, and irrelevant to the objectives of making financial provision. Unless these legislative objectives are challenged, the impartial application of law consistent with them could not be said to be unjust.

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The same principle holds for determinations concerning arrangements for the children. A further way to approach the dilemma is through Dworkin’s ‘unity of value’ thesis discussed earlier.32 This, it will be recalled, denied that the values of promoting a child’s best interests and achieving justice between the parents must necessarily conflict, since promoting a child’s best interests was a more important way of treating the parents justly than not doing so. It therefore becomes unnecessary to see the interests of the children as being in opposition to the ‘justice’ claims of the parents, but both as being expressions of a single value about how to live a good life. But if these strategies assist in upholding the integrity of family justice, it is still necessary to find practical solutions to conflicts where attempts to achieve an optimal outcome for children through legal enforcement can be more harmful to the children than a sub-optimal outcome. This enforcement paradox illustrates in the sharpest way the tension between behaviour-focused and outcome-focused approaches to family justice. The reason is that the desired outcome (an arrangement that is best for the child) is contingent on the way the parents behave towards one another. In this case, the outcome desired (the best interests of the child) is being frustrated by the failure of one parent to follow the decision of a court about the child’s best interests. Yet using standard legal methods of enforcement risks causing greater harm to the child. Furthermore, imposing such consequences could inhibit a parent from raising genuinely felt issues about the other, or taking certain protective actions arising from concerns about the children’s well-being, for fear that the other will use this to have the arrangements modified. Rhoades (2000) has argued that the 1995 reforms in Australia aggravated this problem. On the other hand, there is evidence that mothers who are looking after children do exercise a good deal of power, not necessarily wrongly, but simply because the children are living with them, which can either facilitate or inhibit the exercise of contact by a non-resident father (Trinder 2008). There seems little alternative, therefore, to turning to behaviour-focused approaches to try either to avert the problem, or resolve it.

C.  Behaviour-focused Approaches A wide range of programmes designed to operate pre-emptively, to prepare parents to face the special challenges of performing their roles when they are living apart have been operating in the United States and Canada. It is unfortunately not easy to assess how effective they are. Hunt and Roberts (2005: 3) remark that many of the evaluations do not satisfy the requirements for robust research, and, where they do, the results are ‘mixed’, and, especially, that ‘a review of short, universal programmes on which robust research has been carried out (four) found 32   See section I. Alternatively the values could be seen as independent and non-commensurable, but that there will always be a rational basis for prioritising between them in specific cases without diminishing the value of either vis-à-vis the other (because they are non-commensurable).



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only a little evidence of conflict reduction’. A review by Douglas (2006) came to similar conclusions. Later reviews have been hardly more encouraging. Sigal et al (2011: 135) concluded that, although participants often reacted positively to them, there was little evidence that these programs are achieving their stated goals of improving the quality of nonresident parent-child contact, fostering the quality of parent-child relations by either the custodial or non-custodial parent, resolving inter-parental conflict, improving co-parenting, reducing litigation or most importantly improving outcomes for children.

However, this is largely because of limitations of the research, and Fackrell et al (2011: 115) were slightly more positive, concluding that ‘we probably know enough from the current body of research to justify continuing and even increasing support for this preventative social policy’. An initiative in England and Wales arose after the Children and Adoption Act 2006 allowed courts to direct parents who were finding it difficult to agree about contact to engage in a ‘contact activity’. Such activities could include programmes, classes, counselling and guidance designed to ‘assist a person as regards establishing, maintaining or improving contact with a child’.33 One such activity is the Separated Parent Information Programme (PIP). The courses are run by independent providers from a variety of backgrounds, all of which will have had experience in running group interventions with separating and divorcing couples. They consist either of two two-hour group sessions or one four-hour group session, seeking to have parents focus on their children’s needs and perceptions. Courts refer parents to them at different stages of the procedure, and if referred, parents are required to attend, but in separate groups. A thorough evaluation of the early days of the scheme showed results rather similar to those in North America. Participants generally felt positive towards it, and may have benefited by the insights obtained. For example, nearly half of parents thought the course helped them understand their ex-partner’s perspective, and two-thirds felt it helped them understand their children’s feelings (Trinder et al 2011: 53). There was also a slight increase in the exercise of contact. However, the researchers say: On three primary targets: contact, communication (or conflict) and court, it would appear that PIP is having a modest impact on the first but not the second or third. It is important to recognise that contact is not necessarily a positive outcome for children where there is continuing high levels of parental conflict or there are concerns about safety. Indeed, we did identify a potential sub-group of ‘risk’ cases for whom PIP may worsen outcomes for parents and children (Trinder et al 2011: 8).

So, despite positive parental perceptions, the courses seemed not to improve parental relationships. Furthermore, it appeared that the courses were being used as ‘supplemental’ to the legal processes, rather than avoiding their necessity. Nevertheless, the researchers believed there was potential for the programme to   Children Act 1989, s 11A(5).

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have more positive effects, and recommended people should be referred to it earlier, that its content be reviewed, and that follow-up mechanisms be introduced. The Family Justice Review (Review Panel 2011: para 4.85) recommended that all parties should be encouraged to attend a mediation assessment meeting prior to court appearance (judges could compel it), and that assessment could in turn refer applicants to a PIP (Review Panel 2011: para 4.87). The Coalition government endorsed this, saying it would ‘consider how to make such programmes available to parents as part of pre-court dispute resolution processes’ (Ministry of Justice and Department for Education 2012: 74). However, there seem always to be likely to be cases where parties will continually attempt to revert to court because they cannot accept the situation. Hunt and Trinder (2011) considered international evidence on how these cases were approached at the request of the Family Justice Council. Having observed that they probably constitute about 0.1 per cent of all separating parents and 1 per cent of court applications, they concluded that the use of a Parenting Co-ordinator, as done in some US jurisdictions, might be explored. This is a court-appointed official who works with the parties to try to ensure implementation of a court order, and to whom the court delegates some decision-making authority.34 The alternative seems to be very intensive therapeutic programmes. The Children and Adoption Act 2006 introduced a number of new penalties for breaches of contact orders such as undertaking unpaid work (a form of community service) or paying compensation to the other parent for any financial loss. But, recognising the enforcement paradox, the court is required to take into account the effect of this on the welfare of the child. The Family Justice Review (Review Panel 2011) was unable to resolve the paradox, saying simply that 4.152 We set out in the interim report the enforcement powers currently available where an order is breached. In preparing that report we considered proposals to strengthen them, including suspension of driving licences, the use of curfews (enforced through electronic tagging) and increased use of orders to reverse residence. We noted however that even the current powers are rarely used, often because to use them would be against the interests of children. ... 4.154 The current provisions for contact activity directions and contact enforcement orders all depend on contact orders. Careful consideration will need to be given about how the new child arrangements order will be enforced. This means, amongst other things, that it needs to be clear on whom the obligations rest so that it can be properly enforced. 4.155 Where an order is breached the case should go straight back to court, to the same judge. The case should be heard within a fixed number of days with the intention that the issue be resolved within a single hearing. If an order is breached after 12 months, parties should be required again to attend a MIAM [mediation assessment] with a view to further mediation if appropriate, before a return to court.   This system was proposed for British Columbia: Ministry of Attorney-General et al (2010: 16–17).

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The government thought that bringing a case where an order had been broken within 12 months back to court and heard within a set number of days by the same judge who made the original order was ‘the key to breaking the cycle of conflict between parents’. This may indeed be useful if the problem has arisen because of lack of clarity in the original order, or because of changed circumstances. The government also stated that it was considering wider enforcement sanctions, without stating what they might be. But it was pinning its main hopes on deterrence: ‘We believe that a much stronger warning should be given at the outset of proceedings about the potential consequences of either parent breaching a child’s arrangements order’ (Ministry of Justice and Department for Education 2012, paras 79–80). It considered introducing measures such as withholding passports and driving licences, and reminding parents that the courts have the option of transferring the child’s home to the other parent. There is a risk that enhancing such threats might deter people from defending their view of the children’s interests in court for fear that they may be visited with punitive measures, and perhaps even lose residence of the children. We have seen that the courts in fact very rarely adopt a punitive approach, and seek to facilitate agreed outcomes far more often than imposing them. It is very important that this role is appreciated, for it promotes agreed solutions within the framework of the law which gives priority to the children’s interests while at the same time respecting the value of fairness. But this depends also on the court maintaining its authority, and this is reflected in its ability to use coercive power in the last resort. So both roles, seeking agreement and (as a last resort) imposing outcomes are equally important. In a few cases, when all this fails, and the best outcome for the child is frustrated in a way that enforcement would only make things a great deal worse for the children, it may be necessary to settle for a sub-optimal outcome. Whether this provides justice for the adults or children may be debatable. But it is a salutary reminder that there are limits to what the law and legal mechanisms can achieve.

9 Late Modern Justice: Information, Advice and Privatisation I. Background In 2003, Helen Reece (2003) drew on a number of theorists to argue that the abortive divorce reforms proposed in the Family Law Act 1996 illustrated a ‘post-liberal’ approach to family governance. ‘Post-liberalism’ can refer to a number of intellectual ideas, including, for example, those reflected in the politics of pluralism (Gray 1996), and even earlier, in theology, which relate belief more closely to culture and language (Frei and Lindbeck 1984). In this context, however, we take it to refer to an attempt to reconcile the idea of individual autonomy with acceptance that agency is socially constructed. The proposition is that such reconciliation, and therefore self-authenticity, can only be found through an intense process of self-reflection, in which the individual uses a ‘profusion of resources to aid reflection, such as therapy, self-help manuals, television programmes and magazine articles’ (Reece 2003: 61, citing Giddens ((1991)). Whatever view one might take about this concept of self-authenticity, the growth of a more individualistic ethic during the 1960s and 1970s, and the neoliberal reaction starting in the 1980s against post-war welfarism, led to issues of governance sometimes referred to as ‘late modernism’. This is because the new rhetoric of ‘empowerment’ and ‘choice’ needs to be squared with the equally urgent advocacy of individual ‘responsibility’. Two mechanisms for achieving this are through the provision (or manipulation) of information and the use of techniques of persuasion. As Nikolas Rose (2006: 147) has put it: ‘(Government) does not seek to govern through “society” but through the regulated choices of individual citizens, now construed as the subject of choices and aspirations to self-actualization and self-fulfilment. Individuals are to be governed through their freedom’. Reece (2003) and Eekelaar (1999) demonstrated that the divorce process proposed in the Family Law Act 1996 contained these features. For example, the original purpose of the Law Commission’s proposal that a ‘waiting period’ should precede an application for divorce was that the passage of time provided sufficient evidence of the irreparability of the breakdown of the marriage to allow its legal dissolution. This purpose was subtly changed in the government’s eventual scheme to that of providing a period of ‘reflection and consideration’ ‘to

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enable spouses to consider and where possible make arrangements for the future, and to reflect on whether the breakdown of the marriage was irreparable’ (italics supplied). Also, the purpose of the proposed information meetings, which the parties were expected to attend, changed from being to provide information about legal matters and the consequences of divorce and effects on children, to being to ‘require couples to consider whether their marriage really is over or whether it could be saved’. Another goal of the meetings was to inform potential divorcees of the ‘benefits’ of mediation, which were seen as developing the ability to fashion their own outcomes rather than have them imposed from outside. But the value of empowerment was to be tempered by the belief that information, if presented in a sufficiently accessible and persuasive way, will affect the way people exercise their options. ‘For the post-liberal’ writes Reece (2003: 183) ‘the sole purpose of providing information is to ensure that people make the right decision’. A related feature of this approach to governance is the strategy of attempting to influence the context in which people live, in particular that in which children are brought up, in the belief that this will result in them voluntarily behaving in ‘desirable’ ways. Nigel Parton (2006) uses the phrase ‘late modern’ to describe the policy of early intervention in families to reduce the risk of children failing to develop as fully participating (and ‘responsible’) citizens, either as a result of social deprivation or parental upbringing that is for various reasons inadequate. Information and persuasion are important tools in the intervention process. One should be careful about supposing that these modes of governance are entirely new. Jacques Donzelot (1979), building on Foucault’s analyses, sees its beginnings in the late-eighteenth century Enlightenment. But of course the techniques have developed. There may also have been a shift in emphasis through a movement away from forms of social control that apply after the event, usually through some form of punitive action, with the object of deterring specific behaviour and diverting it into different behaviour, towards anticipatory activities designed to internalise norms so that people can seem to be exercising autonomy, but it is an autonomy exercised according to norms preferred by the state. A further example of this family of approaches to governance has been called ‘libertarian paternalism’, or, more popularly, ‘nudge’ theory (Thaler and Sunstein 2003), where administrations are urged to tailor information, or the way options are presented, so that individuals are more likely to make the kinds of choices administrators would like them to make. Seen in this way, there are certainly grounds for believing that policy regarding family justice is moving to a ‘late modern’ position, as we will call it. This is different from ‘post-modernism’, which refers to an alleged disintegration of concepts and values and their replacement by a myriad of subjectivities. But it is related to it in the sense that individuals are encouraged to seek their ‘own’ solutions to their problems, thus raising the prospect of subjective and individualised justice. This prospect, however, was to be countered through the provision of information and persuasion. Yet it should be said that it is by no means clear how successful those strategies can be as a mode of governance. The divorce proposal was never

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implemented,1 so we do not know whether the waiting period coupled with information meetings would have led to more people reconsidering their decision to separate because neither was introduced. However, the information meetings were given trials, and it was found that the goal of persuading people to use mediators rather than lawyers by providing information about the ‘benefits’ of mediation failed. Only 7 per cent of those attending the pilots had been diverted into mediation and 39 per cent of those attending had reported that they were now more likely than before to go to a solicitor (Lord Chancellor’s Department 1999; Collier 1999). This should be a strong warning that the power of information may not always be able to displace strongly felt needs. But, as we have seen,2 hopes about mediation have persisted and the idea that people will be able to act rationally if information is properly presented to them has grown. This has indeed become a pervasive instrument of policy, assisted by the development of information technology. Thus schools tables are supposed to assist parents to decide where their children should go to school. Hospital perform­ance rates, and even those of specific practitioners, are supposed to assist choice of location for treatment. Even maps showing crime rates according to geographical location are now available. The usefulness of some of this information has been questioned.3 In May 2012 the Prime Minister, David Cameron, announced a significant expansion of this policy, which harnesses the power of modern technology to a policy of seeking to influence behaviour through information and a belief that early intervention in this way will create more responsible citizens: Exciting new services to give mums and dads the support they need to do the best for their children were launched today by the Prime Minister. The care and attention a child receives when young will affect their health, behaviour and ability to learn throughout their lives. A recent survey suggests that 85 per cent of mums and dads want more practical help on caring for their baby to provide the best possible start for their children. The Prime Minister outlined that the support being offered to parents will include: • a brand new digital service for parents-to-be and new parents, providing regular emails and texts with timely information as their pregnancy develops and their child grows; • free parenting classes to all parents of children aged five years and under in three trial areas; • expert organisations to deliver relationship support for first time parents in four trial areas of the country from this summer. (Press Release, Department for Education, 18 May 2012).

1   It was withdrawn by the government in June 1999. Lord Chancellor’s Department, Press Release, 17 June 1999. 2   See ch 3. 3   See Leckie and Goldstein (2011) on school league tables; Jacobson, Mindell and McKee (2003) on hospital mortality tables.

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We do not comment on this, other than to say that, while the provision of such information can be useful (as it may be), it cannot replace other activity, such as facilitating the means for people to act on it, ensuring the delivery of high quality services to people based on their choices, and, in many circumstances, providing guidance as to how the information is to be interpreted, and best acted on in specific circumstances: namely, good quality advice. The relevance of this background to our discussion of recent initiatives regarding family justice will become apparent as we look, first, at the questions of child support and other financial arrangements in the context of the proposals by the government and the Family Justice Review regarding the provision of legal, and other, information.

II.  Child Support: from Compulsion to Informed Support Prior to the implementation in 1993 of the Child Support Act 1991, court orders concerning financial arrangements between divorcing parents in England and Wales paid little attention to the distinct needs of the children concerned. Amounts for children were usually ‘tacked on’ to awards for a spouse in what seemed to be an arbitrary manner. This was ironic in view of the fact that research in the 1980s revealed that spousal maintenance was almost always paid only where the recipient was looking after children. Where child support was paid to a single parent who had not been married to the payer, not only were the amounts very small, but they were usually diverted to the state to offset (though only marginally) the cost of social security payments made to the recipient. During the 1980s the proportion of single mothers receiving such payments rose from 40 per cent to 66 per cent. By the end of the 1980s, therefore, there was growing dissatisfaction with the way child support was handled, both from the perspective of the interests of the children concerned, and of the interests of the state (Maclean and Eekelaar 1993). The then Prime Minister, Margaret Thatcher, cast the issue in strong moral terms, emphasising the lifelong4 duties parents owed to their children. The atmosphere was aggravated by a judicial holding that the fact that the former wife of a divorced father was receiving state benefits could be taken into consideration when determining how much he should pay to support her and his children, thus leaving him with more money to house himself and his new partner.5 Maclean (2011) describes the way the legislation that was to become the Child Support Act 1991 evolved. This was characterised, firstly, by the speed which Mrs Thatcher’s 4   She coined the phrase: ‘Parenthood is for life’. The support obligation, however, only persists during the child’s minority. 5   Delaney v Delaney [1990] 2 FLR 457.



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involvement generated in the process. Impatience with the way the courts dealt with child support favoured what was thought would be a more efficient administrative system (the Child Support Agency) which could determine liability rapidly by means of a formula and mobilise enforcement measures. Courts were therefore forbidden to make orders for child support, unless this was part of a consent order incorporating a prior written agreement, and even then, this could be overturned by an order of the agency after 12 months. If the aim had been primarily to ‘bring home’ to parents their obligations to their children, as seems to have been Mrs Thatcher’s motivation, this was overtaken by the Treasury’s concern that the cost of the scheme could only be justified if there were sufficient financial benefits to the state. The formula was therefore designed so that the liability of the debtor parent could rise to the highest possible level consistent with maintaining an incentive to work. All claimants for most social security benefits who were caring for children were compelled to seek child support payments through the agency as a precondition to receiving the benefit, and the claimant’s benefit was to be reduced by a sum equivalent to the child support payment received (that is, there would be no ‘disregard’). This had three consequences that were disastrous for the scheme. First, it created the perception (with some justification) that the intention was to raise revenue for the state rather than to assist children.6 Second, most parents were deprived of any incentive to use the scheme: their participation depended on compulsion. Third, setting maximum levels so high required the incorporation of a range of qualifications into the formula, which turned out to be fatal to its efficient application. Despite many modifications (including the introduction of a modest ‘disregard’), a review in 2006 (Henshaw 2006) found that the scheme cost some £200 million more than it brought in. The review’s key recommendation was that benefit claimants should no longer be compelled to pursue a child support claim through the agency. They should be encouraged to reach their own agreement. To provide an incentive for them to do this, payments under such agreements should rarely reduce their benefit payments. They would be an additional source of income for the receiving parent. The first recommendation was implemented in 2008.7 The Child Support Agency was replaced by a Child Maintenance and Enforcement Commission (CMEC). The wider recommendations of the review were taken up by the Coalition government in 2011 (Department for Work and Pensions 2011a). The way they were developed assumed a distinctly ‘late modern’ character. The Henshaw report was a strongly pragmatic document. It wished to draw clear demarcation lines between what the state should do, and what should be left to private arrangement. It saw the original scheme, which compelled benefit 6   The impression was fortified by the way liability was calculated, which was based on calculations of social security benefits, and the debtor parent presented with a ‘bill’ to meet those costs. Application to the agency was compulsory by parents seeking social security benefits, and the agency prioritised collection from men whose families were receiving social security benefits. 7   Child Maintenance and other Payments Act 2008, s 15.

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recipients to claim child support through the agency, as crossing that line, to the detriment of both the individual and the state. It stated: The state should only get involved when parents cannot come to agreement themselves, or when one party tries to evade their responsibilities. Removing the barriers that currently prevent some parents from making their own arrangements would allow the state to focus on the more difficult cases and where effective enforcement is needed. (Henshaw Report 2006: 5).

The report argued that parents should be ‘encouraged and supported’ to make their own arrangements, but recognised that this might need to be reinforced by legal authority: Those who want a private arrangement to be legally enforceable would be able to obtain a consent order. This option should be available to all parents. Those unable to use other routes would have access to the government back-up service. (Henshaw Report 2006: 5).

The report later expanded on this: Removing the compulsion on benefit claimants to use the CSA will open up the court route to those who wish to validate a private agreement through a consent order. The main impact of this will be to enable benefit claimants who are divorcing or separating from a cohabiting partner to agree child support as part of a wider financial settlement. (Henshaw Report 2006: para 53).

For parents on low incomes and benefits, this route, which it called the ‘legal route’, should be funded by legal aid. Parents would retain the option of using the ‘administrative’ route should they so choose. However, ‘targeted information would need to be provided to clients to ensure they understand their options’ (Henshaw Report 2006: para 77). Information provision and ‘support’ was to play an important part in the new scheme. A crucial part of making the new system work effectively is providing the right support and information to clients. Advice at early stages could help parents decide on the most appropriate route for them to establish a child support arrangement that works. A range of services already exist to support parents who have, or are undergoing, a relationship breakdown. Parents can access support through a variety of providers, including: • Sure Start and Children’s Centres; • extended schools; • family support agencies; • Jobcentre Plus; • local authority advice centres; • family mediation services; and • the wider not for profit sector, including Citizens Advice Bureaux (Henshaw Report 2006: para 41).

The report adds: Charging can also be used to incentivise parents to make their own arrangements where possible. Creating successful private arrangements requires both parents to co-operate, which suggests a rationale for charging both the parent with care and non-resident parent for using the service.



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However charges are introduced, the needs of vulnerable parents with care must be taken into account. I do not want to create a disincentive to use the service for those parents who have no other option for agreeing maintenance (Henshaw Report 2006: paras 135, 136).

The Coalition government’s Consultation Paper (Department for Work and Pensions 2011a) maintains the overall strategy of the Henshaw Report. But that report’s measured, pragmatic tone is replaced by a pervasive and zealous assertion of a ‘vision’ confident in the capacity of early intervention, information provision, ‘support’ and, in the last resort, financial penalty, to bring about desired behaviour, which in this case includes making ‘collaborative agreements’ not only regarding child support, but also about child care arrangements. The content leaves little doubt about what its authors think are the kinds of decisions people should be making. Supporting families to prevent relationship breakdown is central to our vision for strong families. Where preventing family breakdown is possible, we must intervene early to help parents overcome problems they may face in their relationships and avoid more intractable problems developing. The same principles of early intervention and effective support apply to families who are separating or at risk of separation: family breakdown impacts can be long-lasting, for parents and children alike (Department for Work and Pensions 2011a: Ministerial Foreward, para 4). We want to enable and empower parents to have more responsibility in making their own informed choices to establish enduring post-separation arrangements (Department for Work and Pensions 2011a: Ministerial Foreward, para 8). We believe that families themselves are best placed to determine what arrangements will work best for them. Underlying our approach is the assumption that government should use mechanisms to encourage and support parents to: • fulfil their responsibilities as parents in terms of continuing involvement in their children’s lives and through the payment of child maintenance; and • make family-based arrangements concerning these issues wherever possible, which is better for children, rather than relying on government services to step in and administer these arrangements on parents’ behalf (emphasis in original) (Department for Work and Pensions 2011a: Executive Summary, para 4). We want to encourage parents to draw on a range of support to help them reach family-based arrangements for child maintenance which will facilitate co-parenting and the ongoing involvement of both parents in children’s lives (Department for Work and Pensions 2011a: Executive Summary, para 5).

In order to fulfil this ‘vision’, it is proposed that no one should have access to the statutory system without passing through a ‘gateway’, though the ‘gateway’ might fast-track certain ‘vulnerable’ people towards the statutory system. The gateway would initially take the client through the available maintenance options. Currently, we envisage the gateway will be delivered through a telephone offering. The applicant would be expected to engage with the gateway to consider their choices before they made any full application to the statutory scheme (Department for Work and Pensions 2011a: ch 2, para 8).

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Most users, however, will be referred to ‘wider family support services to enable families to find resolution across a range of issues’. They would be offered ‘a package of support’ to enable parents to put in place their own financial arrangements. The optimistic language of the child support proposals is fortified by the promise of a technical innovation. It will, it is claimed, be possible not only to calculate the levels of support indicated by the rules through a ‘child support calculator’, but, by linking to the tax authorities, ascertain the legal liability of a particular person. Of course, this would require the co-operation of the person involved, but if the parties have been persuaded of the benefits of reaching their own agreement, why would that not happen? Apart from the calculation of maintenance to be provided, the support will primarily be offered through ‘Websites such as “the Couple Connection”8 (which) exemplify the sort of innovative support we want to be available to families’, though, for those who prefer face-to-face services: Many of the best Sure Start children’s centres already offer relationship support, but we believe there is potential to do more, particularly given the increased focus on families in greatest need and intervening early. For example, where it makes sense locally, more children’s centre staff might be trained in evidence based approaches which enable them to detect and respond to parents in relationship distress (during pregnancy, birth and beyond); or children’s centres might increasingly work with local partners to provide access to relationship counselling to parents who need it. Local authorities have a critical role here in identifying areas where this is a priority, and identifying resource to help children’s centres take on these roles. It could also mean the use of children’s centres as hubs providing advice and support on maintenance alongside support on other issues regarding family breakdown (Department for Work and Pensions 2011a: ch 1, para 21).

There is no reference to the ‘legal route’ referred to in the Henshaw Report which involved parties negotiating a consent order which would go before a court, or (as that report had stated) that legal aid should be available for eligible parties using that route. In fact, the government’s legal aid changes 9 exclude legal aid in those circumstances, unless the parties used mediation. The Henshaw Report had recommended imposing a charge for the use of the statutory service as an incentive to reach agreement without its use. The 2011 Consultation Paper agreed, but expressed it slightly differently. The charge is made ‘to encourage parents to make the best choices about child maintenance’ (Department for Work and Pensions 2011a: ch 2, para 16): For parents who choose to enter the statutory scheme a charge will be applied to the applicant. This will encourage the parent to try and reach a family-based arrangement. The charge, in return for the delivery of a statutory service application, will ensure all applicants have considered at the gateway whether they are able to make a collaborative family-based arrangement instead. This is a central part of our reforms to ensure the   This is an interactive website offering advice regarding personal relationships.   See ch 1, section II.B and E; ch 3, section VI.

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child maintenance system supports active choices that will move parents to the right arrangements for them and their children. (Original emphasis) (Department for Work and Pensions 2011: ch 2, para 23).

People are therefore to be given choice. But if they do not take the one the government believes is the best one, they will face a penalty. The government maintained these positions in response to the consultation, emphasising that the longer-term objective was that the support to which referrals would be made through the ‘gateway’ would be provided by voluntary and community services (Department for Work and Pensions 2011b: Question 2, para 8).

III.  Financial Matters: Towards Informed Settlement? We concluded chapter three by referring to the proposals in the Family Justice Review (Review Panel 2011: para 4.70) that there should be three main ‘stages’ of dispute resolution in family cases. First, there would be: an ‘information hub’ (an online resource and telephone helpline); then ‘dispute resolution services’ and finally the ‘court process’. The online hub would be central to the process of obtaining a divorce. The Review says: Where a person seeks a divorce they should go first to the information hub, where they will be able to access an online divorce portal. This would explain the process and possible grounds for divorce and give access to the necessary application forms. The person initiating divorce would complete the application online. The system should have in built checks to prevent the now frequent administrative errors. The individual would also be prompted to consider arrangements for children, financial and religious issues and be directed to further information and support services as appropriate. The applicant would not be expected to provide details of arrangements for children or money, as for all other separating couples. . Where there are disputes over children or money parties would make an application under the relevant section of the Children Act 1989 or the Matrimonial Causes Act 1973. The online form would then be submitted to a centralised court processing centre. The application would not be processed unless it was accompanied by a fee or a remissions form and verification, and approved identification documents, such as an original copy of the marriage certificate. The application would be received by a court officer who would check that the application had been filled out correctly, acknowledge receipt and serve the application on the other party. The other party would then return the forms to the processing centre indicating whether or not they contested the divorce or whether they wished to make a cross application. Where the ground for divorce is uncontested the court officer would issue both parties with a decree nisi. (Review Panel 2011, Annex H).

The Family Justice Review clearly envisages that the ‘hub’ will deal with much wider matters than child support. Some might think that the idea that a marriage

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can be dissolved by a process similar to applying for a television licence seriously devalues the significance of the event (see Herring 2012). We have sympathy with this view. Although the present process may be conducted ‘by post’, usually through a solicitor’s office, at least the decree is pronounced by a judge in court, and we recall the (admittedly unusual) occasion when a divorcing couple was present when this was done.10 But our present concerns are with the way the arrangements connected with the divorce are reached. The Review says that ‘the individual would also be prompted to consider arrangements for children, financial and religious issues and be directed to further information and support services as appropriate’. Although, as we noted, there is no mention of consultation with lawyers, nor is this expressly excluded. For people who can afford their use, no doubt that will continue. But for those who would find this difficult, and for the system generally, the idea of an ‘information hub’ as a resource is of great importance. It resembles, and indeed may be the same thing as, the ‘gateway’ in the 2011 proposals regarding child support mentioned above. In accepting the Review’s proposals in this regard, the government noted that it was ‘considering how the planned reforms to the Child Maintenance system could provide the opportunity for the technical infrastructure for an online information hub, as well as a helpline which can offer support to all separating parents’ (Ministry of Justice and Department for Education 2012: 71). The Family Justice Review (Review Panel 2011) expanded its views on the hub in these terms: 4.11.  We propose that separating couples should go first to an information hub to give them ready access to a wide range of information and direction to further support as appropriate. This should emphasise shared parental responsibility throughout. The hub should: focus parents to consider the needs of their child first, emphasising that a child will benefit from a continued relationship with both parents, where this is safe; support parents to resolve their issues independently; direct them to find available support to resolve any disputes outside of court; and help them to understand what to do and what to expect where an application to court is necessary. 4.12.  Shared parental responsibility is a matter of practicalities as much as principles. It breaks down if the practical arrangements break down. We propose that parents be encouraged to reach a Parenting Agreement (paragraphs 4.49 – 4.54), which they will be able to access in template form from the information hub. 4.77.  The online information hub should offer support and advice in a single easy-toaccess point of reference at the beginning of the process of separation or divorce to enable people to make informed decisions about how best to resolve any issues they may have. In particular, the website should provide clear guidance about parents’ responsibilities towards their children, the benefits to children of a relationship with both parents, what further support is available, and advice about options and processes for supported dispute resolution, including court resolution. Those who deliver the helpline services should be trained to identify where there may be child protection or domestic violence concerns.   See ch 6, section III.B.iii.

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4.170.  Those in dispute about money or property should also use the information hub and be required to be assessed for mediation.

The government accepted these suggestions, commenting: ‘As the online information hub . . . is developed it will be important that people are aware of and engaged in using it as a resource to understand the options available to them’ (Ministry of Justice and Department for Education 2012: 82). On 29 November 2012, the government launched a web application intended to offer separating parents personalised advice and directing them to other useful links.11 The Review says that parties ‘should’ or would be ‘expected to’ use the hub. It is less clear however how this could be enforced. It is hard to see that it could be made a precondition to consulting a lawyer, though it might be made such before receiving legal aid or taking court proceedings, assuming such a requirement were enforceable. How would one know if someone had or had not looked at a website, or how long they spent on it, or tried to follow it? It is more likely that pressure to use the hub will be exerted by making alternatives more difficult to access, for example, by restrictions on legal aid and other forms of assistance. As we have seen,12 removing legal aid in cases of private family disputes (with certain exceptions) from the scope of the scheme was an important element of the Coalition government’s plans for reforming the legal aid scheme.

IV.  Information, Advice and Justice A.  Information and Advice Initiatives similar to those outlined above have already been taken in the United States, where courts are responding to a sharp increase in the number of ‘selfrepresented’ litigants, which has been particularly marked in family cases, and is attributed to economic conditions, causing considerable concern to the judiciary.13 Since non-profit organisations that provide legal services rarely offer family law, courts themselves have developed their own modes of information provision. Zorza (2009: 522) explains: These services range from the concierge desk, a desk in the court lobby often staffed by volunteers that direct court users to the right location, to the self-help center, and often elaborate service center providing a wide range of informational and referral services to litigants. Referral services range from workshops to one-to-one assistance and range from remote assistance by video to mobile van-based self-help centers and include the use of a law library as a resource center for the self-represented.  www.sortingoutseparation.org.uk/hub/.   See ch 1, section II.B and E; ch 3, section VI. 13   It was reported in California that, in 2004, 67% of petitioners in family law cases were selfrepresented at filing, rising to 80% by the time the case was closed (Zorza 2009: 520; see also Painter 2011: 45–46). 11 12

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Some courts have gone further and supplemented these services with websites, sometimes with videos explaining the law and what will happen in court, and online forms. However, such resources are also provided, online, by commercial enterprises, which can create confusion (Zorza 2009: 525–28). There are also issues concerning the quality of services provided by such enterprises and the extent to which they may require regulation (Painter 2011). In Canada, an elabor­ ate proposal for an information hub was the centrepiece of the recommendations of a Family Justice Reform Working Group in British Columbia in 2005 (Family Justice Reform Working Group 2005). In London, the Citizens Advice Bureau has a help desk at the Principal Registry of the Family Division for those involved in family cases. It is staffed by lawyers, but offers support, not legal advice. Court forms are available online. As useful as these services are, they do not provide a continuing relationship in which advice is given as to the choices available, or assistance in carrying out those choices, drafting or writing letters or presenting evidence. While recognising the helpfulness of these resources, the American Bar Association (2009) has commented that only lawyers can provide the help that may be necessary to supplement these sources. While Painter (2011: 53) has questioned whether such assistance can only be provided by lawyers, the importance of third-party assistance is not questioned. In a survey of sources of advice available in Australia to separating parents, Fehlberg, Smyth and Fraser (2010a) noted that the main resources to which parents usually turn are bodies concerned with providing social security payments and child support. However, they observe that they needed advice on a wider range of issues, such as: specific financial issues they face on separation, outside child support responsibilities, and Centrelink (social security) entitlements; ‘joining the dots’ between the overlapping financial issues they face (including what issue to tackle first, how decisions on one financial issue will affect another, and the impact of those decisions on their and their children’s financial interests and relationships); and discussing and negotiating financial issues with their former partner (Fehlberg et al: 199).

These issues are not routinely dealt with in the Family Relationship Centres, and the researchers conclude: To be able to fairly negotiate financial issues, separating parents may need access to a range of professional assistance, including one or more of financial counselling, information and advice (including legal advice) in relation to the range of financial matters affecting them (Centrelink benefits, child support responsibilities and property division [including their disclosure obligations]), along with appropriately trained FDRPs to conduct financial dispute resolution, lawyer assisted FDR if appropriate, and legal advice and assistance prior or during FDR, and in relation to formalising their arrangements. (ibid: 206).

In this regard, an analysis comparing advice given by telephone and face-toface obtained from Legal Service Commission data in England and Wales has shown that telephone advice was much more successful than face-to-face advice



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when the call needed no follow-up and provided information allowing the caller to ‘plan or manage’ their affairs, but much less successful than face-to-face advice when the client sought to bring about an action by another, like being housed or rehoused, or retaining a home, or getting repairs effected to a property (Balmer et al 2012). It was also found that persons under 18, and people who were ill or disabled were less likely to use the telephone, and that much more time was needed for telephone advice as an issue progressed than in face-to-face encounters. Further research into the way users respond online using hypothetical examples on experimental subjects suggested that, apart from errors in identifying the appropriate websites, and in navigation within them, the fact that the subjects acquired some increase in knowledge of their rights did not translate into taking appropriate action, or confidence in their ability to handle the matter on their own. They would still turn to other sources of support (Denvir 2012). This suggests that the effectiveness (and efficiency) of such information sources is dependent on the nature of the problem, and that they are less effective in bringing about actions and resolving disputes. This suggestion seems to be supported by another Australian study, involving interviews with 60 separated parents over three consecutive years. Fehlberg et al (2010b) examined, among other things, the relationship between parenting arrangements and property settlements and between parenting arrangements and child support. As regards the latter, the Australian child support formula creates a relationship between the parenting arrangements and the amount of child support to be paid. Although the parents were aware of the formula, the arrangements were out of step with that relationship in nearly one-quarter of the cases. Sometimes these were the result of discrepancies between a parent’s actual circumstances and those reported to the Child Support Agency, and sometimes they were a result of non-compliance with what was ordered. These discrepancies were either accepted or not challenged. As regards property settlements, it was found that the relationship between property settlements and parenting arrangements was even more attenuated. In most cases where there were at least moderate assets, factors such as the experience of violence, a wish to ‘keep the peace’, feelings of guilt, and to avoid high legal costs seemed to determine the asset division. These findings14 indicate the kinds of pressures that arise in post-divorce settlements, which mere information about the law, and the use of administrative mechanisms, may not be able to overcome. Of course, a ‘hub’ system may not be confined to providing information. It could provide a location where inquirers are referred to other sources of assistance or advice. For example, the British Columbia Family Justice Reform Working Group (2005: 24) stated: Once family members have an information base, they will often need help from other professionals. A qualified person working with them to assess their needs can make sure 14   See also the information from the study of Minutes of Agreement registered in Scotland, in nearly half of which independent legal advice was not provided to each party, from which Wasoff (2005) concluded that most parties felt pressured into making unacceptable compromises: see ch 3, section III.

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they are pointed in the right direction. For example, the assessor could meet with one or more family members to discuss whether the situation is suitable for CDR [consensual dispute resolution] and if so, which of the various dispute resolution options available in the community would be most appropriate and useful. Or, they might be referred to a lawyer for legal advice and assistance in pursuing either CDR or litigation.

This clearly envisages a significant back-up facility of personal advisers, which could be expensive. The Canadian Department of Justice appears to be aware of these issues. When alerting people to the existence of guidelines for determining issues of spousal support15 on its website, the Department warns: If you want to use them yourself to calculate spousal support, there are a few key points you should be aware of: • S pousal support is one of the most complex subjects in family law. You are strongly advised to get legal advice from a lawyer specializing in family law. Even if you can only afford to have one consultation appointment with the lawyer, he or she can give you an overview of your rights. Then you will be better prepared to discuss all the important issues with your former partner. • The Guidelines do not provide advice on whether a spouse is entitled to support. They only provide advice on appropriate ranges of support in a variety of situations where entitlement to support has been established.16

The position is even more complicated if issues concerning distribution of assets or occupation of property are also in issue. The complexity is the kind that can best be handled by persons who have the benefit of experience. The contrast between the Canadian Department of Justice’s advice that people should take legal advice and the current attitude of policy-makers in the United Kingdom of either neglecting the role of lawyers or actively discouraging their use is very telling.

B. Justice We need to recall our earlier discussion of the nature of justice in the family context. It seemed that this involved seeking ‘outcome-focused’ solutions, amenable to assessment by an impartial entity following accepted standards, typically the law (in our societies).17 This was one reason why we have emphasised the import­ ance of the role of lawyers, or legally trained individuals, in the dispute resolution process. We have noted above that the Coalition government’s proposals concerning child support are notable for the absence of any reference to the use of legal personnel among the resources to which the ‘gateway’ might lead, or even as an alternative route for producing outcomes, as the earlier Henshaw report had mentioned. Even the Family Justice Review was muted in this respect. The government’s web application, ‘sorting out separation’ is very reticent in making any suggestion that users might seek help from lawyers.   See this chapter, section V.  www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/index.html. 17   See ch 2. 15 16



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How might parties to family disputes fare in such a world? It is very difficult to tell from existing empirical evidence, which has been collected in different circumstances. One can only make informed, or partly-informed, guesses. We can start by looking at what happens when people lack legal advice, and then ask how this might be different if information of some kind was available through a media source. For example, in a small study of 37 divorced men and women and 18 men and women who had separated after living together unmarried, it was found that the latter group were much less likely to have taken legal advice. The result was that even the relatively limited legal remedies available to unmarried parents were much less likely to have been invoked. So it is possible that the outcome for the separating cohabitants was affected more by the absence of effective legal advice than by the absence of a suitable legal framework (Maclean et al 2002). In particular, this could mean that a separated unmarried mother living with her children was less likely to be protected in her occupation of the home than a separated wife. How far these consequences could be attributed to lack of legal advice, or a mistaken belief that no legal remedies existed anyway, cannot be ascertained. But misapprehensions about the law are not confined to unmarried cohabitants, for married people have them too, as Batagol and Brown (2011)18 found in Australia. In another small study in England and Wales, Douglas and Perry (2001) asked 66 divorced parents how they coped in the immediate aftermath of the separation. It appeared that few consulted lawyers early on, ‘although’ they report, ‘those who did found it helpful’. Instead, in the early stages, they often resorted to family and friends. When, later, they did turn to lawyers, they reported less satisfaction than respondents in other studies,19 feeling that the lawyers tended merely to give them the options rather than assess their consequences. The parents were also concerned about legal costs. The question therefore arises whether this knowledge can be provided through the information media imagined in the proposals of the Family Justice Review and by the Coalition government for reform of child support set out above. The information refers to the legal norms that regulate the fairness of outcomes and how they might be applied to specific cases. In principle, this information might have the equivalent effect of the input of an impartial third party into the resolution of the differences between the parties. However, we have already referred to the difficulty people may have in understanding how what may be complex provisions apply to their circumstances and, in particular, in taking action on it, especially if its translation into action needs to overcome the often competing interests of the parties, and the respective ability and willingness of each to use whatever bargaining means they have. Another concern is that the information may be presented in a way that seeks to direct the recipient towards a particular decision, even if it might not be suitable in their case. For example, both the Family Justice Review and the Coalition   See ch 3, section III.   See ch 3, section I.B.

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government’s child support reform proposals recommend that the information provided should refer to the arrangements for the children, in particular, mentioning the benefits of continued involvement of both parents in their children’s lives.20 This is a simpler message than what could be quite complex guidance concerning finance and property and, given the extent to which some separated parents become detached from their children,21 an exhortation of this kind could be salutary. Yet even here, practicalities and individual circumstances can make the application of an apparently straightforward and beneficial goal more difficult than might seem at first sight. Australia has gone partly in this direction by requiring lawyers, counsellors and mediators advising a couple on these matters to (a) inform them that, if the child spending equal time with each of them is: (i) reasonably practicable; and (ii) in the best interests of the child; they could consider the option of an arrangement of that kind; and (b) inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is: (i) reasonably practicable; and (ii) in the best interests of the child; they could consider the option of an arrangement of that kind.22

This provision channels the information about the time-sharing of the child between parents through professionals. Although couched in somewhat gentle terms (they should inform them only that ‘they could consider’ the option) it raises a significant issue over the independence of professional advisers and the provision of information. The government appears to be trying to regulate the way these professionals exercise their judgement in a bid to have people choose an outcome it favours, using the language of simply providing information.23 At first sight it might seem that its effect has been minimal. An evaluation of the 2006 reforms in 2009 showed a very small increase in the proportion of children of separated parents in a shared care arrangement since 2006, and the proportion had been growing in any event from before 2006 (Kaspiew et al 2009, especially ch 6). However, the evaluation also showed that families where there was a history of family violence who used family dispute resolution services, lawyers and courts (that is, those who were under the duty to raise the issue of a child spending equal, or substantial amounts of time with each parent) were ‘slightly more likely than other families to have shared care arrangements’, suggesting that the ‘message’ about shared care was having greater effect than its qualification (by reference to the child’s best interests) and that ‘women, in some cases, were being pressured into agreeing to arrangements that they felt weren’t in their children’s best interests’ (Kaspiew et al 2011: 403–09). The implication seems to be that manipulating   See this chapter, section II.   See ch 8, section IV.A. 22   Family Law Amendment (Shared Parental Responsibility) Act 2006, s 63DA. 23   British Columbia legislation only requires professionals to ‘encourage’ resolution by discussing alternative dispute resolution procedures, without requiring the professionals to ‘nudge’ the parties towards a specific outcome, other than placing the children’s interests first (Family Law Act 2011 (BC), s 8). 20 21



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the information that advisers give to clients can affect outcomes. This could also happen in respect of information conveyed through websites and helplines. Finally, it must be remembered that many decisions in family matters affect not only the adult parties, but also their children. However much an information source may exhort its users to have regard to the children’s interests, there must be doubts whether adult parties are always able to do this.24 There is growing recognition that it is necessary to have some means by which the ‘voice’ of the child is heard in these matters; not necessarily to allow the child to determine the outcome, but in order to introduce the child’s perspective into it (Parkinson and Cashmore 2008: 202–05). The Family Justice Review strongly endorsed this view (Review Panel 2011: Executive Summary paras 8, 9) but methods by which this might be done need to be developed. Within a court, the children’s views might be presented through a representative, or a welfare officer, or the child might speak directly to the judge.25 Norwegian law was amended in 2004 so as to give every child over seven a right to express a view in court proceedings affecting him or her, and if the child is over twelve, the court must attach ‘significant weight’ to such views. The child’s views could be expressed directly to the court, or through an appointed officer. Research has indicated that children mostly make use of this opportunity, and this has resulted in a major enhancement of attention given to children’s views, even of those between seven and twelve, bringing them more into the centre stage of the proceedings. Although courts are not bound to give effect to the children’s views, their opinions do seem to have increasingly influenced the outcomes (Skjørten 2013, forthcoming). Although, as has been observed earlier, judges frequently show concern about the children’s views, legislation similar to the Norwegian provisions could be helpful. It would be harder to ensure that such attention is paid to children’s views in informal processes, as research in Sweden (Ryrstedt 2012) and Norway (Haugen and Rantalaiho 2010) with respect to mediation has shown. In Australia, ‘child-inclusive’ mediation uses a specialist ‘child consultant’ to see the child prior to the mediation and make a report, giving the child’s perspective, at the mediation. While this does ensure that attention will be given to that perspective, and may be appreciated by children and parents, there is evidence that it may not reduce parental conflict or make agreement more likely (Parkinson and Cashmore 2008: 43–47; Bell et al 2013, forthcoming). But still less, it seems, can be achieved merely through information obtained, for example, on a website.

V.  Information, Rules and Discretion It is therefore possible that the provision of information alone may often be insufficient to achieve the purposes of those providing it. That does not mean that such   See Ryrstedt (2012) at ch 2, section III.   See ch 4, section VI.

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information can never do that, or that it does not have value. But its usefulness diminishes to the extent that the law which it is attempting to communicate is uncertain or open-ended. A message saying that the law regards a fair outcome as being simply what a judge decides says very little about the actual outcome to be sought after. It is sometimes said that the law in England and Wales, and indeed in common law systems generally, regarding the resolution of post-divorce disputes essentially depends on the exercise of judicial discretion. If that were literally the case, it would be hard to write about any kind of law at all, and impossible to give meaningful advice about it. In fact, while judges are given scope, in making their decisions, to assess what outcome is reasonable on the facts before them, they do so according to recognised values and principles. The same is true when they decide what arrangements are in the best interests of a child. These principles and values can of course themselves be contested in the legal process, and for some periods they may be truly uncertain. But usually stability of some kind returns after a significant legal ruling. This can be said to be a major feature of the application of justice according to law, because on the one hand the law should be certain and predictable, but on the other, it must be dynamic and adapt to specific circumstances. We might try to resolve this tension in a way indicated by Jeremy Waldron (2011) which sees law as a process of thoughtful argument and discussion about what an outcome should be, conducted within the constraints and guidance provided by rules and principles. If this is a reasonable representation of how law works, it raises a serious problem for the technique of conveying its content through media such as online hubs, or even telephone helplines. How could these sources capture the sense of principled reasoning if this is central to legal decision-making? However, a rather different view of law could be more receptive to the use of new information technologies. Dewar (1998) has argued that the tension between having disputes resolved through the use of ‘discretion’ of the kind referred to above and deciding them through the application of ‘rules’ of a more mechanical kind has been a significant feature of modern family law. He suggested that, towards the end of the twentieth century, there was a movement in family law from discretion towards such rules. This occurred partly out of a desire to reduce costs by making judicial decision-making simpler and also making it easier for people to settle matters without going to court, and partly from a belief that certain outcomes were desirable in themselves (to which people were entitled as of right) without needing a refined judgement about their broader utility. These considerations certainly underlie the objectives of using a formula to establish child support liability. Its mechanistic application allows for rapid calculation of liability, through a computer programme if necessary, and its enforcement is automatic, regardless of circumstances. Yet, as we saw, in the United Kingdom, the approach failed. However easy it might be to do the computer calculation, it was still necessary to acquire the correct information on which the calculation was to be made. Enforcement was not always straightforward. And it proved impossible to ignore the many different



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circumstances of the individuals in question. These types of rules can operate successfully, but they can only do so within a limited scope and reach. There is, however, a different approach to rules available, and therefore to the role of information, which tries to span the divide between mechanical rule-application and reasoned argument. This is best exemplified in the Canadian Spousal Support Advisory Guidelines. Rogerson and Thompson (2005: v) explain the difference: These advisory guidelines are very different from the Federal Child Support Guidelines. They are not being legislated by the federal government. They are informal guidelines that will operate on an advisory basis only. The proposed advisory guidelines will be used to determine the amount and duration of spousal support within the existing legal framework of the Divorce Act and the judicial decisions interpreting its provisions. The guidelines are not legally binding and their adoption and use will be voluntary. They are intended as a practical tool to assist spouses, lawyers, mediators and judges in typical cases. The basic formulas, variations and exceptions are intended to build upon current practice, reflecting best practices and emerging trends across the country. The proposed advisory guidelines do not deal with entitlement, just amount and duration once entitlement has been found. The Guidelines were drawn up after a lengthy consultative process, in which feedback from judges, mediators and practising lawyers was obtained. Its aims were practical rather than theoretical – to provide a practical tool to assist family lawyers, mediators and judges who are confronted daily with the dilemma of determining appropriate levels of spousal support, as well as divorcing and separating spouses (Rogerson and Thompson 2008: 15).

These Guidelines, then, are primarily conceived of as aids to the legal profession in an attempt to articulate underlying common threads in the current application of the law at a practical level, and thus achieve greater consistency. If law is viewed in Waldron’s terms, they are highly visible aids to structuring the ‘thoughtful’ reasoning process that is at the heart of law. However, by making these issues more transparent, it will have become easier for individuals to know what outcomes the law favours. In the more straightforward cases, they may point to a clear outcome, while retaining flexibility allowing for adjustment in more complex circumstances. They can therefore be a valuable tool in the provision of information to individuals about the expectations the community has about what constitutes fair outcomes to certain types of conflict. But their limitations were recognised in the strong recommendation on the website of the Canadian Ministry of Justice quoted earlier that parties should also seek legal advice.

VI.  Privatised Justice We began this chapter by suggesting that an important goal of late modern justice is the empowerment of individuals to choose their own solutions, albeit that the state seeks to use various devices to control what those solutions should be. These

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devices have limited effect. The question then arises: how far should the state accept the solutions people themselves devise to their problems? In general, the solution reached by the parties on the occasion of family breakup would be set out in a ‘separation agreement’. The point of entry for the state would be if it is asked to approve, or enforce, that agreement. In most cases, this would occur if the parties have put their agreement into a draft consent order. If accepted by a court, it can be enforced as if the court had made the order itself. But would a court accept, and enforce, anything the parties agreed? In principle, courts should be satisfied that the arrangements accord with what they would have ordered, but in practice they tend to rely heavily on the fact (if it is the case) that the parties have been independently legally advised,26 once again underlining the importance of the role of lawyers in keeping outcomes in touch with legal norms. If the parties do not embody their agreement in a court order, they must rely on the law of contract if they wish it to be enforced. However, insofar as the subject matter of the separation agreement also falls within the jurisdiction of the family courts, it can always be overridden by that jurisdiction, thus allowing either party the opportunity to seek a court order that could be inconsistent with the agreement. In dealing with such an application the court will give first consideration to the welfare of the children. Apart from that, it will tend to uphold the agreement unless it would be unjust to do so, or there has been a change in circumstances with the same result (Miles 2012: 110). A more drastic form of privatisation could be achieved through the use of ‘marital agreements’, entered into either before or after the marriage, before the parties are contemplating separation, which can regulate the financial dispositions to be made should the parties divorce. However, the scope for parties to set their own regime of justice is restricted. In Radmacher v Granatino27 the majority of the Supreme Court stated: The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

The court went on to say that whether such circumstances existed ‘will necessarily depend upon the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result’ (para 76). These comments were made in the context of the exercise of the jurisdiction of the family courts, and it would not be possible to prevent either party having recourse to it. In this way the courts have allowed people a limited degree of autonomy to determine their own outcomes, but its extent remains under their control. The same approach would apply in the case of civil partnerships, and presumably would also be followed if the parties had no formal status, though in that case the scope of the family jurisdiction is narrower.   Dinch v Dinch [1987] 1 WLR 252.   [2010] UKSC 42, para 75.

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The matter, however, becomes more complex if the parties have agreed when marrying that any dispute regarding their marriage should be resolved by a religious authority according to religious norms. This issue is highly complex and cannot be fully investigated here.28 As Malik (2012: 10), among others, has pointed out, until at least the late medieval period, European societies, including England, applied a variety of laws from different sources, until the rise of nation states promoted the ideal of a centralised, unified, legal system. But even modern states with federal-type structures (not least, the United States) permit regional variations in some aspects of family law. In the United Kingdom, family law in Scotland differs in many respects from that in England and Wales. Others states retain a structure that allows, or even compels, adherents of certain faith groups to resolve their family conflicts according to the law of and within the institutions of their faith. Our earlier discussion of family justice is compatible with these modes of legal disposition because it is presented in abstract terms, referring to the need for impartial entities acting according to authoritative norms, typically, the law. As stated at the beginning of the book, it does not engage with the broader themes of the nature of the law itself. However, as in the discussion of mediation and legal aid, we have been concerned with the reach of the law and constraints that may exist to access to the justice system. One such constraint, paradoxically, could be the policy that claims to empower parties to find their own solutions to their disputes. The outcomes generated in this way could be so heavily affected by the context of the parties, including the nature of their relationship, that they fail to satisfy the criteria of fairness set out in chapter two. Attempts to influence these outcomes through the techniques of information and persuasion may be insufficient to overcome this. What, therefore, is to be said of circumstances in which parties seek resolution of an issue according to religious norms that are separate from state norms, and within the institutions of that religion? First, it must be understood that there will be issues that can only be dealt with by such authorities. A Roman Catholic seeking nullification of a marriage according to the laws of that church can obtain this only from the recognised church authorities, and this applies also to the acquisition of certain types of Islamic and Jewish divorce (Douglas et al, 2012). Such procedures fall outside the family justice system, and beyond the direct29 reach of the state, even if the procedures, and outcomes, may be inconsistent with standards and values embraced by the state, unless criminal activity was involved. However, the question arises as to what, if any, legal recognition should be given to decisions concerning property and finances, and arrangements regarding children, given by non-state authorities. In principle, it is open to any disputants to agree to submit their dispute to a third party, and abide by that party’s decision. But, unless the outcome was incorporated in a consent order (as described   For discussions see Shachar (2001, 2008); Maclean and Eekelaar (2013); Malik (2012).   The state might seek to influence such procedures indirectly, as where the courts are permitted to refuse to make absolute a decree of (civil) divorce on the application of a husband who refuses to divorce his wife according to Jewish law: Divorce (Religious Marriages) Act 2002. 28 29

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above), enforcement could be complicated, requiring application of the law of contract. Therefore states have established mechanisms whereby, under certain conditions, they will treat the decision of the third party as if it were a decision of a state court, and enforce it accordingly. This is done in England and Wales under the Arbitration Act 1996. Within certain limits, the parties may choose the arbitrator, and even the system of law the arbitrator is to apply. This is particularly valuable in international disputes. The question for family justice is whether, and, if so, to what extent, the use of this process in the case of family disputes is consistent with the principles of just­ ice, especially where the institutions and law chosen to determine the dispute are religious. In the early 2000s controversy arose in Ontario, Canada, whether family arbitrations according to Islamic law should be allowed under the province’s arbitration legislation. Despite a report recommending that it should be allowed, subject to certain safeguards (for example, that participants had received prior legal advice and that arbitrators kept proper records), the Ontario government decided that family arbitration could only be carried out by applying the law of Canada or its provinces (Shachar 2008; Ahmed and Luk 2012). It is unlikely, however, that this has prevented disputes being resolved under Islamic law, although the outcomes would not be enforceable in the state courts under the arbitration legislation. In England and Wales, the Arbitration and Mediation Services (Equality) Bill 2012 would, if enacted as originally drafted, have made it a criminal offence if ‘any matter which is within the jurisdiction of the criminal or family courts’ was made ‘the subject of arbitration proceedings’. It seems as if this was intended to prevent family disputes, at least when relating to financial and property matters, and perhaps also family violence and issues concerning children, from being dealt with in the many shari’a councils that operate in conjunction with various mosques. Yet it is debatable whether proceedings in these councils are ‘arbitration proceedings’ for the purposes of the arbitration legislation because the adjudicators see themselves as offering advice (albeit with strong authority) about the provisions of Islamic law rather than as giving legally binding decisions and the parties have not entered into a written agreement to submit their dispute to arbitration (Eekelaar 2011). But it may be different with regard to the Muslim Arbitration Tribunal, a national body, which operates more formally. In any event, it appears that the clause that would have criminalised such procedures was to be dropped from the Bill.30 If outcomes reached in these ways do not satisfy the requirements necessary for them to constitute arbitrations, they might be treated as separation agreements in the manner explained earlier,31 and implemented either through a consent order or as contracts. If they do constitute arbitrations, either party may seek enforcement by a court under the Arbitration Act 1996. This procedure has its own safeguards, but   HL Deb, 19 October 2012, vol 739, col 1684 (Baroness Cox).   See earlier in this section VI. .

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these are primarily of a procedural nature, such as to ‘act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent’.32 So the process must be fair. But what of the outcome? Assuming that the requirements of the Arbitration Act are satisfied, could an English court in a family matter be bound to enforce a provision of law in a case arising wholly within its jurisdiction that is inconsistent with the general law, and possibly with the state’s international obligations? Probably not. The court is likely to wish to be assured that the outcome complied with fundamental principles of English family law, especially the ‘best interests’ principle, and it would always be possible for either party to invoke the family jurisdiction. Nevertheless, within these limits, it seems to be open to parties to find their own solutions to their problems, using their chosen mechanisms.33 As Ahmed and Luk (2012) observe, this could be consistent with the enhancement of personal autonomy. But, as they also observe, whether this is so is an empirical matter that requires research. If enacted, the Arbitration and Mediation Services (Equality) Bill 2012 would require compliance with equality legislation in agreements if they are to be enforced under the arbitration procedure. This could be seen as a further limitation on the scope of privatisation. Ultimately, however, it is a matter of political judgement how far a democratic state is willing to allow the law which is delivered through its justice system to be determined outside state institutions.

VII.  Final Reflections At its heart, family justice is about how far the community believes it should become involved in problems people encounter in their personal lives. By the community, we here mean ‘the state’, through its laws and institutions, because as we have just seen, there can be a number of distinctive communities within the state. So those cases create an additional layer to the question of intervention: how far should the state become involved in the way people’s personal lives are affected by their own communities? That some involvement can be justified can hardly be in doubt. The state surely owes duties over those with respect to whom it claims legal and political jurisdiction. It owes duties to the children who will constitute its future members; it owes duties to the vulnerable and must surely be under an obligation of some kind to endeavour to promote a just society in accordance with the values it claims to uphold. Taking a broad view of the contemporary state of family justice in England and Wales, there are grounds for optimism. The substantive law, while of course in a state of evolution, and under constant scrutiny and discussion, seeks to recognise and support committed relationships and, conscious of its limitations in controlling   Arbitration Act 1966, s 33(1)(a).  See re AI and MT [2013] EWHC 100 (Fam).

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intimate behaviour, attempts to ensure that, where things go wrong, fair adjustments are made. It is cognisant of the need for protection against exploitative and violent behaviour. It has responded to widely accepted human rights norms especially with regard to the reluctance that should be shown when removing children from their families in child protection cases. Above all, it tries to ensure that the children, who on any view are innocent parties to these troubles, are harmed as little as possible. We have argued that the optimal way of giving effect to those goals of the substantive law through the family justice system is by an integration of ‘behaviourfocused’ and ‘outcome-focused’ strategies. An approach which seeks to exclude one or the other, or create a serious imbalance between them, threatens those goals. Here our optimism becomes clouded. The Coalition government’s legal aid reforms did not, of course, abolish family law. But its virtual removal of private family law issues from the scope of legal aid betrayed an attitude that saw such disputes as being for the parties to sort out, and not the concern of the state, though, in a strangely inconsistent manner, it imagines that legislation could be important in affecting the extent of parental involvement with children after separation. It is true that an exception is made in cases of violence, and this and concessions made during the passage of the legal aid legislation regarding the definition of violence and the evidence upon which it could be found to be present34 will blunt its impact. But it could equally aggravate conflict by requiring allegations of violence to be made as a precondition for obtaining legal aid. In any case, power imbalances can occur without violence. But the concerns run deeper, as the reforms are likely to reduce the number of lawyers willing to do legally aided family work, private or public. How far the absence of legal advice can be successfully replaced by the provision of information, on websites or in other ways, remains to be seen. Batagol and Brown (2011: ix) suggest that, presently at any rate, the public’s understanding of the law and its application is very limited and confused. But there may be encouraging signs. While promotion of mediation through legislation in itself may have limited value, it could provide an incentive for the development of greater collaboration between lawyers and mediators, as found in Australia (Rhoades 2010). This could be assisted by the emergence of multi-­ disciplinary practices as the more flexible forms of regulation created by the Legal Services Act 2011 take effect.35 The expectation would be that the professions would build up expertise in conducting triage so that the right mix of legal and other input will be available as appropriate to a case at an early stage, and not succumb to the mistaken idea that the law only becomes relevant at a late stage in the resolution of family issues. This kind of collaboration could be an ideal expression of the two approaches we have argued to be necessary in the application of family justice. The issue of funding and costs, especially for poorer clients, will still of  See Family Law, June 2012, Newsline: ‘Legal Aid Act 2012’.   See ch 3, section VI.

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course arise. Whether this can be satisfactorily resolved outside the legal aid system remains to be seen. But none of this can happen without a sound court system to which those relatively few cases that cannot be resolved by other professionals of the family justice system can be referred. We have observed that, for the large part, the court process is a continuation of the integrated approach, though sometimes formal adjudication is necessary. It should not therefore be seen as a hostile, and alien, environment, to be shunned at almost any price. It remains the ultimate safeguard that serious family problems can be resolved justly.

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Sarat, A and Felstiner, WLF, ‘Law and strategy in the divorce lawyers office’ (1986) 20 Law and Society Review 93. Schepard, A, ‘The Evolving Judicial Role in Child Custody Disputes: from fault-finder to conflict manager to differential Case management’ (2000) 22 University of Arkansas at Little Rock Law Review 395. ——, Editorial (2008) 46 Family Court Review 217. Secretary of State for Constitutional Affairs, Parental Separation: Children’s Needs and Parental Responsibilities: Next Steps Cm 6452 (London, The Stationery Office, 2005). Sen, A, The Idea of Justice (Cambridge MA, The Belknap Press of Harvard University Press, 2009). Shachar, A, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2001). ——, ‘Prizatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law’ (2008) 9 Theoretical Inquiries in Law 573. Shaffer, M, ‘Joint Custody, Parental Conflict and Children’s Adjustment to Divorce: What the Social Science Literature does and Does not Tell us’ (2007) 26 Canadian Family Law Quarterly 286. Sigal, A, Sander, I, Wolchik, S and Braver, S, ‘Do Parent Education Programs promote healthy postdivorce Parenting? Critical Distinctions and a Review of the Evidence’ (2011) 49 Family Court Review 120. Singer, A, ‘Active Parenting or Solomon’s Justice? Alternating residence in Sweden for children with separated parents’ (2008) 4 Utrecht Law Review 35–47. Singer, JB, ‘Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift’ (2009) 47 Family Court Review 363. Skjørten, K ‘Children’s voices in Norwegian Custody Cases’ (2013) 27 International Journal of Law, Policy and the Family, forthcoming. Smart, C, ‘From Children’s Shoes to Children’s Voices’ (2000) 40 Family Court Review 307. Smith, D, ‘Law, Justice and the Unity of Value’ (2012) 32 Oxford Journal of Legal Studies 383. Smyth, B, ‘A five-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal of Family Studies 36. Spinak, JM, ‘Romancing the Court’ (2008) 46 Family Court Review 258. Stepan, M, ‘Slashing Legal Aid: Ironic Implications for Mediation’ (2011) 41 Family Law 304. Tanenhaus, DS, ‘The Evolution of Juvenile Courts in the Early Twentieth Century: Beyond the Myth of Immaculate Construction’ in MK Rosenheim, FE Zimring, DS Tanenhaus and B Dohrn (eds), A Century of Juvenile Justice (Chicago, University of Chicago Press, 2002) ch 2. Taylor, G, ‘Challenges from the Margins’ in J Clarke (ed), A Crisis in Care? Challenges to Social Work (London, Sage, 1993). Teitelbaum, L, ‘Status Offences and Status Offenders’ in MK Rosenheim, FE Zimring, DS Tanenhaus and B Dohrn (eds), A Century of Juvenile Justice (Chicago, University of Chicago Press, 2002) ch 6. Thaler, R and Sunstein, C, Nudge: Improving Decisions about Health, Wealth and Happiness (New Haven: Yale University Press, 2003). Trinder, L, ‘Dangerous Dads and Malicious Mothers: The Relevance of Gender in Contact Disputes’ in M Maclean (ed), Parenting after Partnering: Containing Conflict after Separation (Oxford, Hart Publishing, 2007). ——, ‘Maternal Gate Closing and Gate Opening in Postdivorce Families’ (2008) 29 Journal of Family Issues 1298.

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INDEX abstention, 18–19 adjudication, 25–31, 83–5    ancillary relief orders, 41    legal negotiation, 43, 47    protecting the vulnerable, 5–6 administrator, judge acting as, 83–5 adoption, 140–2, 144–6   Action Plan for Adoption: Tackling Delay, 144–5, 146    adoption orders, 92, 142–3   ceremony, 86   delay, 144–6    local authorities, 138–9    role of the circuit judge, 106–10    role of the district judge, 114    role of the Legal Adviser, 118    scrutiny, of, 85–7 Adoption and Children Act 2002, 130 adversarial system, 5–6, 26, 40, 81 advice services, 193–6 Ahmed, F, 204–5 alternative dispute resolution (ADR), 103, 196    Australia, 44    British Columbia, 198   Family Justice Review, 47, 191–3    child support, 191    district judges, 112    information and advice, 193    United States, 42, 45, 58–9 Amato, PR, 165–6 Anleu, SR, 121 approaches to family justice, 8, 22, 64, 98, 120   abstention, 18–19    behaviour-focused approach, 15, 20–1, 53     parental contact, 178–81     US family courts, 58–9    integration of approaches, 206    judicial role, 58    outcome-focused approach, 16    tension between approaches, 25, 64, 98 Arbitration Act 1996, 49, 204–5 Arbitration and Mediation Services (Equality) Bill 2012, 205 Australia, 31, 98    best interests of the child, 170    collaborative law practice, 43–7    criticisms of mediation, 38   fairness, 43–4    family courts, 59–60    Family Law Amendment (Shared Parental Responsibility) Act 2006, 59, 170

   information and advice services, 195   mediation, 37–8    private law disputes involving children, 169–72    shared care, 172, 173 Aquilino, WS, 165 Babb, BA, 57–8 Baby Peter, 71, 130, 136 Bailey, R, 127 BAILII judgments 133–41, 143–4, 147–52 Bainham, A, 164 Bala, N, 67 Balmer, NG, 195 Barlow, A, 26, 35 barristers:   role, 30–1   see also lawyers Bastard, B, 165 Batagol, B, 38, 66, 196, 206 Bates, PD, 143 Bean, A, 110 Beck, CJA, 42 Behlmer, GK, 52-3 Behrens, J, 37, 60 Bell, F, 199 Bevan, G, 34 Biehal, N, 145 Birnbaum, R, 67 Blackwell, A, 26 Boshier, P, 60 Bottoms, A, 66 Boyd, S, 170 Bradley, D, 160 Brake, M, 127 British Columbia, 180    information and advice services, 194, 195–6   mediation, 38 Brophy, J, 143–4,154 Brown, DG, 35–6 Brown, PR, 168 Brown, T, 38, 196, 206 Bulger, James, 129 Burton, A, 65 Butler-Sloss Report (1987) 128, 153 Butterworth, C, 46 Cafcass:   see Children and Family Courts Advisory and Support Service Cameron, David, 185

224 Canada, 39, 178, 201, 204    collaborative law, 46–8    information and advice services, 194, 196   mediation, 39    parenting programmes, 178–9    spousal support guidelines, 196, 201 care proceedings, 2, 68, 128, 134–43    acceleration of, 2    adoption proceedings, 144–6    applications for care orders, 144    approach to, 132    case management, 146–7    court support services, 68    delay, 138–40, 142, 144    disposition in, 138–43    experts, use of, in, 143–4   Family Justice Review, 146–7    interim care orders, 135, 148    legal aid, 130    legal representatives, 31     see also lawyers    parental substance abuse, 155    parents, representation of, in, 152–3    pre-proceedings process, 137 Cashmore, J, 67, 199 Cassidy, D, 174 Chambers, D, 167 child abuse, 127, 128   assessments, 134–5    expert witnesses, 143–4   identification, 134–7    legal aid, 7 child-centred cases, 19–21    behaviour-focused approach, 20–1    child protection, 20    child support disputes, 23    impartiality, 19–20, 21   outcomes, 20    private law cases, 23    public law cases, 23 Child Maintenance and Enforcement Commission, 8, 187 Child Maintenance and Other Payments Act 2008, 187 child protection, 4, 20, 56–7    ‘baby farming’, 125    care proceedings, 2     acceleration of, 2     approach to, 132–4     circuit judges, 106–11     delay, 138–40, 142, 162     court support services, 68     legal aid, 130     legal representatives, 31    case management, 130–2    child offenders, 66    child welfare v child protection, 128    Cleveland case, 127–8

Index    early intervention, 129    history of child protection, 125–8    judges’ role, 97, 106–11, 112   judgments, 133    local authority powers, 125, 127    Poor Law Board, 125   poor laws, 125      protection of children in care, 127    public law, 2, 123–56    relationship between courts and social welfare agencies, 125    social workers, 128–9 child support, 23, 65, 95, 99, 186–91    Child Maintenance and Enforcement Commission, 187    Child Support Act 1991, 186    Child Support Agency, 187    enforcement, 42, 167    Henshaw Report, 187–91   see also child maintenance; financial matters Child Support Act 1991, 186 Child Support Agency, 187, 195 Children Act 1948, 127 Children Act 1975, 68 Children Act 1989, passim especially 4, 57, 128–30, 136, 143, 149, 161–4 Children Act 2004, 129 Children and Adoption Act 2006, 173, 179–80 Children and Young Persons Act 1932, 126 Children and Young Persons Act 1933, 126 Children and Young Persons (Amendment) Act 1952, 126 Children and Young Persons (Amendment) Act 1986, 128, 153 Children and Young Persons Act 1963, 129 Children’s Hearings (Scotland) Act 2011, 66 Children and Family Courts Advisory and Support Service (Cafcass), 63, 69, 71, 94–5, 111, 113, 115, 118, 154 circuit judges, 23, 106–11, 121 Chisholm, R, 170 Clive, EM, 160, 164–5 collaboration, between lawyers and mediators, 43–9 collaborative law, 43–7 Collier, J, 185 Coltrane, S, 167 Colwell, Maria, 153 commutative justice, 16, 17 consent orders, 202 Constitutional Reform Act 2005, 76    contact ‘activities’ 179 disputes and courts 62–4, 111, 115–16, 119, 166    enforcement of, 173, 176–81    intensity of, between fathers and children, 165–7    loss of, between fathers and children, 164–5

Index    presumption of, 162–4, 171, 173–4 Coogler, OJ, 35 co-operative law, 46 Cover, M, 154 Cretney, SM, 50, 53–4, 57, 65, 69, 130 Curtis Committee (1946), 126 Custody of Infants Act 1839, 158 Darbyshire, P, 6, 73, 77, 97–8 Davey, S, 174 Davis, G, 27–8, 34, 41 Davis, J, 52 Dawe, F 26 delay, 4, 138–9, 143–5, 153–4, 162   Action Plan for Adoption: Tackling Delay, 144–5, 146   adoption, 144–6    causes, 29, 81, 138–9, 143    impact on child welfare, 4, 128, 162 Denmark:    private law disputes involving children, 168–9 Denning Committee (1947) 32, 56, 61–2 Denvir, C, 195 Dewar, J, 200 Dicey, AV 125 Dingwall, R 33–4, 39, 40, 56, 129, 134, 153 distributive justice, 16, 32 district judges, 23, 112–17 divorce, 1    applications for divorce, 183    decrees, approval of, 86–7    divorce processes, 27    ecclesiastical courts, 54   financial matters:     distribution of assets, 196     informed settlement, 191–3     occupation of property, 196    financial provision, 177   grounds, 55    maintaining contact between parents and children, 164–6    online application, 191    reconciliation, 55–6, 183–4    reform proposals, 183 divorce courts, 54    power of ‘censure’, 55   reconciliation, 55–6    welfare officers, 56 Divorce Reform Act 1969, 33, 183 domestic violence, 7, 9, 37, 39, 53, 127, 171 domestic violence courts, 65 Donzelot, J, 184 Doughty, J, 72 Douglas, E, 43 Douglas, G, 67, 121, 197, 203 Dudley, JR, 165 Dworkin, R, 158–9, 178

225

Early intervention, 129, 184 ecclesiastical courts, 6   divorce, 54 Edwards, L, 39 Elphicke, Charlie MP, 172 Emery, RE, 42 enforcement paradox, 176–8 Ermisch, J, 166 European Convention on Human Rights, 125, 149    best interest of the child, 164    child welfare, 139–40    pursuing family reunification, 139, 145 expert witnesses, 8, 46, 68, 70, 131, 143–4 facilitation, by judges 80, 93–8 Fackrell, TA , 179 fairness, 16, 21, 43–4, 122    adoption processes, 146    processes and outcomes, 17, 175–6 family arrangement orders, 175 family courts:    alternative care arrangements, 144    behaviour-focused approach, 58    best interest of the child, 132, 157    contact with birth family, 144    court structure, 64–7, 207    court support services, 67–9    criminal procedures, 66    custody issues, 160    domestic violence, 65    Family Justice Review, 144    Finer Committee, 64–5   framework, 73–6    information and advice, 193–6    placing a child with family or friends, 144    private law proceedings, 67    pursuit of family reunification, 139–40    return of the child to the family, 144    United States, in, 58, 64–5    ‘voice’ of the child, 199 family dispute resolution, 91, 198    Australia, 37–8 Family Drug and Alcohol Court, 155–6 Family Justice Review, 1    care proceedings, 146–7, 153    case management, 146   courts, 144    delay hearing cases, 138–9, 142, 153    dispute resolution, 35, 47–48, 191–2    enforcement paradox, 180    Family Drug and Alcohol Court, 155–6    final report, 9, 47, 173    government response, 1–2, 9, 153–4    information and advice services, 197, 206    interim report, 9, 173   judges, 99    lawyers and legal representation, 196–7    maintaining contact with parents, 173

226

Index

Family Justice Review (cont.):    management of child protection cases, 131–2    parental contact with children, 197–8   recommendations:     court support services, 70–2     family court reform, 69–70      Family Justice Service, 70, 72     improved facilities, 122     mediation assessment meetings, 180     use of space, 122    shared care, 173    structure of the family court system, 73 Family Justice Service, 70–2 family justice system, 7–9, 17 Family Law Act 1996 33–4, 65, 183 family law practice, 25–32    best interest of the child, 40, 157, 205    civil v criminal law, 65   litigation, 25   mediation, 25–8    role of judges, 25    studies of, 27–32 Family Procedure Rules 2010, 143 Family Proceedings Courts, 74–5, 88, 117–20   Legal Advisers, 117–20    public law, 74–5 family reunification, 139–41, 149, 156 Farmer, E, 146 Fehlberg, B, 37, 60, 166, 171–2, 194–5 Felstiner, W, 27, 30 financial dispute resolution, 84–95 financial matters, 113, 117    child support, 186–91    distribution of assets, 196    informed settlement, 191–3    marital agreements, 20    occupation of property, 196 Finer Committee (1974), 32–3, 56, 61–2, 64–5, 68, 70 Folberg, J, 36, 167 Forced Marriage (Civil Protection) Act 2007, 76 Fortin, J, 174 Foucault, M, 184 France, court processes in, 99 Fraser, K, 194 Freeman, M, 158 Freeman, P, 121 Frei, H, 183 Geraghty, H, 58 Gerami, A, 40 Gibbons, J, 128 Giddens, A, 183 Gorrell Commission (1912), 54 Graham, M, 167 Gray, J, 183 Greatbatch, D, 39 Griffiths, A , 39

Guardianship of Infants Act 1886, 158 Guardianship of Minors Act 1971, 159–60 Hammurabi’s Code, 12–13 Harland, A, 60 Harris Committee (1936), 53, 55    development of family law system, 61–2 Harris-Short, S, 165 Hart, HLA, 11–12 Harwin, J, 155 Haugen, GM, 199 Hay, D, 52 Hayes, M, 152–3 Helping role, of judges, 92–7 Henaghan, M, 11 Henshaw Report (2006), 187–91, 196 Herring, J, 192 Hester, M , 66 Hickman, N, 167 High Court of Justice, 74 Howieson, J, 31–2, 43–4 Hunt, J, 58, 67, 69, 71, 77, 121–2, 130, 134, 138, 166, 178 Hunter, R, 26, 35 Human Rights Act 1998, 125 impartiality, 16, 19–20, 21, 152, 196 see also fairness in-court conciliation, 63–4, 173 Industrial Schools Act 1857, 126 information meetings, 184-5 information, provision of: by government, 183–6, 197–201    hubs, 47, 191–6    judges, role of in, 92–3 Ingleby, R, 28 Irvine, Lord, Lord Chancellor, 26 Jaffe, P, 59 James, A, 33, 68 Jennings, I, 125 Johnston, J, 176 Judicial Appointments Committee, 75-6 Judicial College, 76 Judicial Office, 76 judges:    adjudication, 25, 76, 83–5    advisory role, 92–3   appraisal, 75–6    authoritative administrator, 86–7   authority, 98    case management, 87–92    circuit judges, 104, 106–11    custody judgments, 160    district judges, 104, 112–17    facilitating, 93–7, 98   fairness, 122    family proceedings court, 104, 117–20

Index    Family Qualifying Test, 76    gender stereotyping, 160, 166    guidance regarding child welfare, 162   impartiality, 152    Judicial Office, 76    legal advisory in FPC, 117–20    matters dealt with:      nature of the matter, 104–5      time spent according to the matter, 105–6    private law, 104–5    public law, 104–5    role, 2, 25, 64, 78–80      adjudication, 25, 76, 83–5, 99, 103     authoritative administrator, 86–7     child protection, 97     county courts, 77     facilitating, 93–7, 104     Family Proceedings Courts, 77      help and advice, 80, 81, 92–7, 103, 104      legal activity, 79, 80, 83–7, 103     management, 79–81, 87–92, 103     scrutiny, 85–6      upholding the interests of the child, 97   scrutiny, 85–6   training, 155 judgments, benefits of written, 146–52 justice, 16–17, 157–9 Kaganas, F, 64, 173 Kaspiew, R, 3–8, 40, 60, 166, 172, 198 Kellett, J, 41 Kelly, JB, 41 Kilbrandon Report (1968), 66 Knaggs, T, 60 Kressel, K, 40 Lader, D, 165, 174 Lamb, M, 176 ‘late modern’ justice:   background, 183–4   definition, 184–5    empowerment of individuals, 183, 201 Lawson, J, 69, 71 lawyers, 7, 22, 43–9, 196–7, 206 Legal Advisers, 23, 117–20 legal aid:    care proceedings, 129–30    child abuse cases, 7, 9    child support, 188    coalition reforms, 1, 7, 9, 193, 206    domestic violence cases, 7, 9, 206    protecting the vulnerable, 5    reductions in, 2, 7 Legal Aid, Sentencing and Punishment of Offenders Act 2012, 1, 7, 123 Legal Services Act 2011, 48, 206 Lewis, J, 33 Lewis, PSC, 4

227

Lindbeck, G, 183 Lindley, B, 121 Listowel, Lord, 53 local authorities:    accountability to the courts, 152    care plans, 130    child protection cases, 130–2 Luban, D, 6 Luk, S, 204–5 Mack, K, 121 Macleod, A, 166 magistracy, 51–4   adjudication, 54    behaviour-focused outcomes, 53    Family Proceedings Courts, 74, 117–20   reconciliation, 53 Malik, M, 203 managing role, of judges 87–92 Manchester, AH, 33 marital agreements, 202 marriage, 12 Marriage Guidance Council, 55 Masson, J, 31, 129–39, 141–3 Mather, L, 30 Matrimonial Causes Act 1878, 52 Matrimonial Causes Act 1884, 50 Matrimonial Causes Act 1937, 55 Matrimonial Causes Act 1963, 32 Matrimonial Causes Act 1971, 160 Mayer, B, 40 McFarlane, J, 46 McIntosh, J, 40, 171 McIsaac, H, 59 mediation, 6–7, 25, 26, 32–38, 206    Australia, 37–38    British Columbia, 38   Canada, 39     conciliation, 33    criticisms of process, 28, 38–41    Denning Committee, 32–3    family law, 27–32    Family Law Act 1996, 33–4    Finer Committee 1974, 32, 56   funding, 9    history of mediation, 25–26    impact on costs, 34   lawyers:     collaboration and cooperation, 43–47      lawyer-led negotiation, 7, 26, 28–32, 42, 43, 47    Mediation Information and Assessment Meetings, 35    New Zealand, 38    research evidence, 41–3      outcomes in mediated cases, 41, 42      outcomes in non-mediated cases, 41   Scotland, 39

228 mediation (cont.):   settlement, 29    Sweden, 20, 39    United States, 35–36, 39, 41 Mediation Information and Assessment Meetings, 35, 47–8, 180 mediators, 22   impartiality, 40   training, 25–6 medical experts:   see expert witnesses Melli, M, 168 Merriman, Lord, 55, 61–2 Methodism, 52 Miles, J, 5, 202 Mlyniec, WJ, 58 Moloney, L, 40 Morag, T, 67 Mosten, FS, 43 Mulcahy, L, 122 Mullins, C , 53, 61 Munby, Mr Justice, 141–3 Munro Report (2011), 110 Murch, M, 27, 72, 98 New Zealand, 11    family courts, 60    mediation, 38, 64 non-molestation orders, 114, 119 Norgrove, D, 1 Norway, 100, 199 nudge theory, 184, 198 O’Donovan, K, 11 Official Solicitor, 68–9, 115, 142 online resources, 47–9, 190–1 Ontario, 204 Orr, D, 157 outcome, comprehensive , 17, 21–2, 175 Page, RW, 65 Painter, RW, 194 parental contact with children, 5, 173, 197–8    behaviour-focused approaches, 178–81    enforcement paradox, 176–8    quality of contact, 179 parental rights, 157–8    child protection, 153 parental skills, 154 parenting co-ordinator, 58, 180 parenting plans, 175 Parkinson, P, 67, 165, 167, 169, 171–2, 199 Parton, N, 128–30, 134, 184 patriarchy, 12 Peacey, V, 166 Pearce, J, 31, 131, 135, 143 Perry, A, 197 Pinto-Duchinsky, M, 125

Index PIPs, 179 Pizzey, E, 65 Poor Law (Amendment) Act 1868, 126 Poor Law (Amendment) Act 1889, 127 Poor Law (Amendment) Act 1899, 127 Poor Relief Act 1601, 52 Prevention of Cruelty to Children Act 1889, 126 private family disputes, 10 private law, 23, 26, 123    Australia, 169–72    best interest of the child, 177–8    Children Act checklist, 162   Denmark, 168–9    disputes involving children, 157–81    family courts, 67    interests of the child, 158–9    justice between parents, 157–9    parental rights, 157–8   Sweden, 168–9    United States, 167–8 probation service, 68 Proctor, Queen’s (King’s) 6, 54 protecting the vulnerable, 4–5 Protection from Harassment Act 1997, 65 Protocol for the Judicial Management of Children Act Cases, 131 Proudman, CR, 155 public law, 2, 23, 26    analysis of judgments, 147–50     Children Act checklist, 149     courts, 148     human rights, 149     making the order, 148     summary judgments, 148–9     threshold conditions, 147–8      wishes of the child, 149   delay, 154    publication of judgments, 150     decision processes, 150     illustrating empathy and encouragement, 151     impartial assessment, 152     respecting parties involved, 150–1   see also child protection; judges Public Law Outline , 89, 120, 131, 136 Quartermain, S, 34 Rantalaiho, M, 199 Rawls, J, 16–17, 36 reconciliation, 53, 55–6, 61–4 Reece, H, 33, 183–4 religious systems, 203 Resolution (formerly Solicitors Family Law Association):    family law practice, 27–8 Review Panel 2010:   see Family Justice Review

Index Rhoades, H, 38, 44, 170, 178, 206 Ribot, J, 13 rights of the child, 145, 164 role of the law in family matters, 2, 9–14 Roberts, C, 178 Roberts, M, 25, 39 Rogerson, C , 201 Roman law 12 Rose, N, 183 Ryder, Mr Justice, 76, 123, 142–3, 145, 155 Ryrstedt, E, 20, 39, 199 Salem, P, 36, 43, 59 Sales, B, 42 Sander, F, 15 Sarat, A, 27, 30 Schepard, A, 58 Scotland, 203    child offenders, 66    Children’s Hearings (Scotland) Act 2011, 66    Children’s Panels, 66    custody issues, 160   mediation, 39    Minutes of Agreement, 39 scrutinising role, of judges, 85–6 Sen, A, 16–17, 32, 159, 175separation agreements, 202 Shacher, A, 204 Shaffer, M, 176 shared parenting, 162–4, 171, 173–4 Sigal, A, 179 Singer, A , 169 Singer, JB, 58 Skjørten, K, 199 Smart, C, 172, 175 Smith, A, 16 Smith, D, 158–9 Smyth, B, 166, 171, 194 Smyth, K, 46 solicitors, 27–32    clients’ instruction, 30 Solicitors Family Law Association (SFLA):   see Resolution Spinak, J, 58 Stepan, M, 48 Summary Procedure (Domestic Jurisdiction) Act 1937, 53–4 Sunstein, C, 184 Sweden:    mediation, 20, 39    private law disputes involving children, 168–9

Tanenhaus, DS, 57 Taylor, G, 127 Teitelbaum, L, 57 telephone advice, 194-5 Thaler, R , 184 Thatcher, Margaret, 186–7 therapeutic courts, 16–19    Australia, 59–60    Denning Committee, 61–2   England, 61–4    Finer Committee, 62    Harris Committee, 61, 62    New Zealand, 60    United States, 56–9    juvenile courts, 57 Thompson, R, 201 timetable for the child, 131 Trevena, F, 154 triage, 59 Trinder, L, 39, 41, 58, 63, 171, 173, 178–9, 180 Tyler, T, 17, 32 United States:    behaviour-focused approach, 58–9    contact with fathers, 166    family courts, 56–9, 65    family law practice, 27, 30, 43    information and advice services, 193    joint custody, 167–8    mediation, 3–6, 39-43    parenting programmes, 178–9 unity of value thesis, 178 Van den Dries, L, 145 Vonèche, C ,165 Waldron, J, 200–1 Wall, Lord Justice, 142 Ward, H, 145 Wasoff, F, 39 Webley, L , 25 welfare authorities    scrutiny of, 153 Whetton, JM, 33 White, R, 130 Willetts, D, 13 Wright, K, 45 Zimring, FE, 57 Zorza, R, 193

229