Evidence submitted by The Law Society
In 1969 the Law Commission defined the purpose
of family law as "to dispose of dead marriages in a manner
that encourages and affords spouses the best possible opportunity
to make rationalised and conciliatory arrangements for their own
and their children's future". We consider that this still
holds true, not just for divorce but in all family cases where
parties are separating. Achieving that should be the purpose of
any changes to the system.
Judicial systems cannot force members of a family
to display appropriate conduct towards one another. However, the
methods used by the courts to recognise the termination of relationships
can help educate and encouraged the parties to consider the results
of their actions and to take responsibility for organising their
own affairs. The legal system and the parties' representatives
can assist the parties to work towards this by offering mediation
and other forms of ADR, collaborative law, in-court conciliation
and other court and non-court based interventions. Many cases
settle through these methods and we think that initiatives to
extend their use will be helpful in family justice systems.
There are, however, some cases that will not
be solved by these approaches, for various reasons, both emotional
and practical. Many of these cases might be described as containing
an imbalance of power between the parties.
In a few cases, the parties may simply prefer
to be told what course of action would be best—feeling unable
to decide for themselves on a course of action and wanting a person
"in authority" to decide for them.
Individuals and their partners in those circumstances
are most likely to use the courts to determine how their money
and parenting should be divided after separation. It is not surprising,
therefore, that many of them will be dissatisfied with the result
that they receive, perhaps because of unrealistic expectations
or because dissatisfaction with their situation generally becomes
projected on to the court system.
Family law attempts to reflect social trends
in a society which is changing rapidly. Courts (or any other similar
tribunal) will always lag behind in their reflection of societal
change.
Nevertheless, we believe that there are ways
in which courts could be improved which would offer greater satisfaction
to their users. Our proposals relating to private children law
procedures are contained in our response to the current consultation
paper on parental separation. A copy of this response is being
provided to this Committee, as an annex to this paper, so we have
not covered these issues in this paper.
There are currently pilot schemes being tried
in relation to private children law cases and a pilot integrated
domestic violence court in Croydon. It would be valuable to have
the results of empirical studies of these pilots before significant
proposals for changes to the system are considered.
1. UNIFIED COURT
A unified court dealing with family law and
criminal law could offer real savings in terms of estate and administration
costs and efficient use of judicial time. For example, listing
could be administered in one central office; files could not be
"lost" between courts. It would also mean that staff
working in the family court would have the opportunity to develop
even greater expertise than currently.
Savings made by establishing a unified court
might also allow the appointment of more family judges, thus helping
to tackle delays.
Plans are currently being discussed to develop
a unified civil court which will impact on family cases heard
in the county court. This might be a good time to also consider
a unified family court.
2. SPECIALIST
TRAINING AND
ASSESSMENT OF
JUDGES
Specialist training would ensure that judges
develop the right approach to family law, as well as the requisite
statutory knowledge. Family law requires a special understanding
of people and their relationships and how to craft orders so that
they look to the future and not just the past. Law in this area
is complex and changes rapidly. Ideally we would like to see judges
specialising either in children law or in ancillary relief cases.
3. CONTINUITY
OF JUDGES
IN CASES
At present a case can be transferred to any
judge with an appropriate "ticket". This often means
that the previous history of a case is unknown to a new judge
and that judge has no time to read what are often lengthy files.
Litigants are either frustrated by that lack of knowledge or they
use the situation as an opportunity to replay the history of the
action. If a case were to be reserved to a specific judge who
was aware of its history he or she would not need to spend time
reading papers to acquaint themselves with facts already known
to their predecessor.
Where this is not possible, it is even more
important that judges should be allowed the time to read papers
before a case commences, thereby reducing court time. It is disruptive
to a case for it to stop while a judge reads papers. It gives
an impression to parties that the documentation they produce is
ignored and that they have wasted their time and energy in producing
it. Reading the documents before the hearing would cut down the
time required to open cases.
This might lead to less delay in hearing cases.
We are told by members that delays in excess of six months for
a hearing at the Principal Registry of the Family Division are
not uncommon. The delay leads to parties' attitudes becoming entrenched
(so that cases are even more difficult to settle) and statements
and reports becoming outdated so that extra costs are incurred
in redrafting or recommissioning them.
4. COURT VENUE
If local courts are closed judges should be
allowed to sit in local venues in other buildings, so that litigants
are able to reach the court building without incurring large costs
for transport and child minding.
5. ANCILLARY
RELIEF
We urge the adoption of guidance as to how s
25 of the Matrimonial Causes Act is to be applied, as we proposed
in our paper "Financial Provision on Divorce: Clarity
and Fairness". We think this would offer parties clearer
understanding of how the law works and so encourage settlement.
At present most litigants have very little idea of the rationale
by which money is divided between parties on divorce. They are
often misled by reports in the press, which do not explain legal
principles. If they understood the process by which money was
divided, they would be more inclined to settle their disputes
without a court hearing.
We also support the proposals by PARAG to unify
enforcement proceedings. We consider that the current system of
enforcement by which only one asset at a time can be attached
is wasteful of courts' and litigants' time and resources.
We have put forward proposals in "Financial
Provision on Divorce: Clarity and Fairness" for changes
to forms and procedure in ancillary relief cases. We think that
these would make the court process more open and comprehensible
to litigants. We believe that if they understood the process better,
many parties would be more inclined to consider settlement.
6. DOMESTIC VIOLENCE
At the time of writing this paper the Domestic
Violence Crime and Victims Bill has not yet become law. We applaud
the ends which the Bill seeks to attain but we have already expressed
our concerns about the viability of some of the means proposed
to attain them. We will not comment further until after we have
seen the effect of the Bill in practice.
Although we appreciate that cost is a factor,
it would considerably increase litigants' confidence that they
were in a safe environment if separate waiting rooms for applicants
and respondents were introduced.
Shona Ferrier
Parliamentary Advisor
The Law Society
November 2004
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