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President calls for family court capable of dealing holistically with all a family’s problems

Lecture outlines the problems with family courts as currently structured

The President of the Family Division, Sir James Munby, has called for the creation of "a one-stop shop in an enhanced re-vamped family court capable of dealing holistically … with all a family's problems, whatever they may be". The President acknowledged that such a court would need to have 'all the necessary tools' to do so.

Delivering a lecture entitled What is family law? – Securing social justice for children and young people as part of Liverpool University's Eleanor Rathbone Social Justice Public Lecture Series, Sir James began by addressing what constitutes the modern family. He said:

"In contemporary Britain the family takes an almost infinite variety of forms. Many marry according to the rites of non-Christian faiths. People live together as couples, married or not, and with partners who may not always be of the other sex. Children live in households where their parents may be married or unmarried. They may be brought up by a single parent, by two parents or even by three parents. Their parents may or may not be their natural parents.

"They may be children of parents with very different religious, ethnic or national backgrounds. They may be the children of polygamous marriages. Their siblings may be only half-siblings or step-siblings. Some children are brought up by two parents of the same sex. Some children are conceived by artificial donor insemination. Some are the result of surrogacy arrangements.

"The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what, until comparatively recently, would have been recognised as the typical nuclear family. This, I stress, is not merely the reality; it is, I believe, a reality which we should welcome and applaud."

He said that such social changes pose enormous challenges for the law and that "family law must adapt itself to these realities. It has, and it does, though the pace of the necessary change has, for much of the time, been maddeningly slow."

He identified four problems with the family courts as they are currently structured. First, there is the problem that the complex procedures prevent the family court ever addressing the family's problems holistically and in a simple 'one-stop' process. This fragmentation of the family court's processes can lead only to delay, added cost and, worst of all, additional stress for all concerned.

Secondly, he considered that family courts ought to be, "but for the most part are not, 'problem-solving' courts". He cited as examples of what can be achieved "the great success of the Family Drug and Alcohol Courts" and "PAUSE, where the objective is to break the pattern we see so frequently in the family courts of mothers who find themselves the subject of repeated applications for the permanent removal of each of their successive children. (The dismal record is believed to be held by a woman who has lost nineteen children to the care system.)".

The third problems described by Sir James is that cases involving families, parents and children are spread across the jurisdictions, so that families from time to time find themselves enmeshed in the various justice systems in England and Wales.

The final and "most pressing problem of all [identified by Sir James] derives from the fundamental constitutional principle explained by Lord Scarman in A v Liverpool City Council, that:

'The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority.'"

This, Sir James explained, has a number of important consequence, one being that generally the ambit of judicial decision-making is constrained by the extent of the resources made available by other public bodies. Consequently, the family court cannot direct that resources be made available or that services be provided; it can merely seek to persuade.

Sir James concluded:

"What is the objective to which this part of family justice reform ought to be aiming? My thesis is simple, though the road to achieving it will, I fear, be long and hard.

"We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family's problems, whatever they may be. More narrowly, dealing holistically with the family court's traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victim. Family justice is surely about something much wider than mere lawyers' law."

For a transcript of the lecture, click here.

3/6/18