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The Government's Response to the Family Justice Review is published

Bar Council and FLBA urge Government to take a ‘considered and practical approach to reforming family law’

The Government has published its response to the Family Justice Review and sets out how its recommendations will be taken forward. It can be read here. The Family Justice Review itself can be read here.

For a detailed analysis of the response, see Norgrove - The Response Considered by Sally Gore of 14 Gray's Inn Square.

In a joint Ministerial foreword, the Secretaries of State for Justice, Kenneth Clarke, and for Education, Michael Gove, call for "greater encouragement of early, consensual parental plans which can survive relationship breakdown."

They say:

"It means improving the enforcement options available where one parent fails to comply with decisions made either through mediation or by a judge. And it means going further than the previous recommendations and making it clearer that there is no in-built legal bias towards either the father or the mother. We believe that where there are no significant welfare issues, we should reinforce the principle through law, that it is in the best interests of the child to have a full and continuing relationship with both parents. We are aware of the debate on this issue, and the arguments are finely balanced. However, if we are to improve the effectiveness of private family law, we firmly believe that families' confidence in its fairness must be strengthened."

Ministers have outlined their plans to reform the system and simplify the family justice system.

In respect of shared parenting the government considers:

With regard to speeding up care and adoption cases by reforming the public law system and increasing transparency, the government has already begun to publish data on the timeliness of court cases so we can see where delays are occurring. It will introduce legislation at the earliest opportunity to enable a six month time limit to be set and wherever possible it expects cases to be completed more quickly, while retaining the flexibility to extend complex cases where this is genuinely in the children's interest.

The government is seeking to simplify the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. It will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child. It estimates that it will spend an extra £10m a year on legal aid for family mediation taking the total to £25m per year (although we have placed no upper limit on this figure). It will also examine how to give the courts more robust enforcement tools to combat failure to comply with judgments.

It seeks to drive culture change and better cross-system working through the establishment of a new family justice board, accountable to ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.

Reaction to the Government's Response
Bar Council and Family Law Bar Association
The Bar Council and Family Law Bar Association have urged the Government to take a considered and practical approach to reforming family law and not to rush to legislate, as it published its response to the Family Justice Review.

Commenting on particular areas of the Government's response, Nicholas Cusworth QC, Chairman of the FLBA, said:

"There are parts of the Government's response, which we welcome, such as strengthening the Court's enforcement rules, for which we have called for some time. Current rules are piecemeal and ineffective, and a cohesive approach to revising them would be a positive step.

"However, there are a number of elements of the Government's response where question marks remain. On shared parenthood, we agree with the Family Justice Review's finding that, learning lessons from the Australian experience, legislating on this issue risks creating the perception that there is a right to substantially shared or equal time, for both parents. It is already widely understood and applied by the courts that children benefit from having a relationship with both parents and legislation would be unnecessary and may do more harm than good. The Government must consider this with the greatest of care.

"The Government continues to place great emphasis on mediation. Mediation in private law cases is supported and encouraged, but there will always remain a significant minority of cases that do have to go to court. The extent to which the size of that minority diminishes after the introduction of compulsory mediation is not yet clear. Particularly given the likely increase in the numbers of litigants in person anticipated when the LASPO Bill becomes law, there may be very little reduction (if any) in the numbers of private law cases requiring court intervention.

"We understand that the Government is eager to limit delays in public law cases, but legislation which enables the state to remove children from their parents' care is, understandably, a very emotive area. The child's welfare must always be the paramount consideration, and the swifter resolution of care proceedings is certainly to be supported. There is a perception that the courts are currently allowing parents who risk losing their children too much of an opportunity to argue their case, allowing delay which may be contrary to the best interests of the child. The must also be an awareness, however, that a six month guillotine risks creating exactly the type of parental backlash that the Government says it is trying to avoid through other proposals. The firmer the requirement to finish in six months, the more likely it is that decisions will be taken without the best available evidence, in an area where any mistake is potentially disastrous for the child concerned. The less discretion the court has, the more likely this becomes. Judges and barristers are certainly aware of this tension.

"We remain ready and willing to work with the Government to provide the views of experience practitioners as to how these proposed changes would affect the family justice system in practice."

 The Law Society has welcomed the Government's announcement today of its commitment to speed up care and supervision proceedings, but warned that this would not be achieved simply by introducing new deadlines.

Law Society
Law Society Chief Executive Desmond Hudson said:

'We agree with the Government that reducing delays in care proceedings is crucial, and welcome its commitment to provide the necessary legislative impetus for change.

"This should not come at the expense of the welfare of the children who are caught-up in the court system. To effectively halve the time which cases take now will require additional resources – but court facilities are being closed and the number of solicitors available to help families is likely to reduce in the wake of legal aid cuts.

"For a statutory six month time limit to be realistic, other measures will have to be put in place including: