An opportunity to improve family law justice in England?
3 November 2011
On 3 November, the final report of the Family Justice Review (FJR), chaired by David Norgrove, was published. This is the most comprehensive review of family justice for many years and makes a series of recommendations for the Government to consider and take forward. The FJR panel produced an interim report earlier this year which it consulted widely on, with responses being received from very many groups and individuals involved in or affected by the family justice system. It represents a real opportunity to improve the way in which we deal with the consequences of family breakdown in this country, with the interests of children being the key focus.
The FJR has a great deal to commend it. It pushes at an open door so far as those of us who are committed to the constructive resolution of family problems are concerned. Long, drawn out and complicated legal processes are emotionally and financially draining for families, especially for children. This is why, for the right couples, Dispute Resolution Services (as the FJR would re-name Alternative Dispute Resolution), such as the collaborative law approach, can be so valuable.
The interests of children and an encouragement to keep families away from the courts wherever possible are at the heart of this review. Parents are to be encouraged to work together by developing parenting agreements, setting out the arrangements following a separation. There will be an online information hub and helpline to give information and support for couples and in particular to explain alternatives to court such as mediation and, of course, collaborative law.
Unfortunately, there will always be those cases that cannot be sorted out by agreement and that need court intervention. However, even after the case has come into the court system, judges will increasingly be looking to explore the possibility of mediation or collaborative law and will also be able to insist on parents going to a Separated Parent Information Programme.
In the minority of cases that really do need to be decided by the courts, new structures will be put in place to cut out the unacceptable delays that plague the system at the moment and that are so bad for children in particular. There will also be steps taken to ensure that wherever possible the same judge deals with a case throughout, promoting consistency and efficiency.
Reform of our family justice system is long overdue. This review could be a watershed, but unfortunately it was published the very day after the Government's Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) left the Commons to go to the Lords. For those people still financially eligible, the Bill proposes retaining legal aid for mediation, but it is not currently going to be on offer for collaborative law, although hopefully that might change in due course. However, legal aid for legal advice on the vast majority of family law issues will be scrapped completely, denying access to justice for some of the most vulnerable people in our society. The fact that the Government commissioned the FJR, but subsequently waded in with proposed cuts that would seriously undermine many of the review's recommendations, is a classic example of fragmented thinking and policy on the hoof. So much of the good work in the FJR could end up being sacrificed on the altar of cost-cutting short-termism.
It remains to be seen whether the political will, and perhaps most crucially the funding, exists to take the FJR’s innovative and largely commendable proposals forward. For the sake of all of those involved in dealing with the consequences of family breakdown, we have to hope it does.