Book Review : Delivering Family Justice in the 21st Century

This is a Guest Post by Sarah Phillimore. Sarah is a barrister at St John’s Chambers and tweets as @svphillimore. She runs the Child Protection Resource website @cpresource.




Delivering Family Justice in the 21st Century (Edited by Mavis Maclean, John Eekelaar & Benoit Bastard, Hart Publishing, 2015)


This is a wide ranging work – there are nineteen Chapters over four separate parts. The first two parts examine law and delivering family justice, examining the role of Judges and the courts in such delivery. Part III looks at the current context of practice and policy and how courts are being bypassed as access to them continues to be cut in the age of austerity. Part IV examines some innovations in delivering family justice.

There are thirty two contributors from a wide variety of countries – Australia, Bulgaria, Canada, France, New Zealand, Poland, Spain and the UK – so a good mix of civil and common law jurisdictions.

However, it’s clear that the problems faced by the vulnerable in their access to the family justice system are universal across geographical boundaries and different legal jurisdictions.
The Editors clearly set out the parameters of the discussion – justice without law is hard to find. Anyone who needs to have recourse to the law with respect to his personal affairs might be properly regarded as vulnerable. A common unifying factor for all family justice systems is that they are poor. The lack of resources has a big impact on when and how people can access the system.

This is compounded by the increasing popularity of the ‘neo-liberal’ approach in all jurisdictions: defined as a social, economic and political framework which is underpinned by a philosophy of individualism and free markets; encouraging the state’s withdrawal from responsibility for social well being or welfare. Individuals are therefore encouraged to be ‘rational economic actors in all spheres of life’ – an expectation which obviously some individuals will find easier to meet than others. Unhappily for certainly the UK government’s promotion of mediation, the statistics around the rise of the litigant in person shows that people are not choosing to exercise their rationality by avoiding court via mediation, for example, but are simply going to court without a lawyer.

Add to this potentially toxic mix is the also popular ‘neo conservative’ philosophy which identifies the state’s role of setting the ‘moral-religious compass’ for society. Thus we are left with a number of jurisdictions where the state is reluctant to interfere with how people order their private lives, will increasingly not help them pay for lawyers to take disputes to court, yet at the same time has a clear view of how people should be required to behave.

The contributions are wide-ranging and thoughtful. However the sheer scale of the range and the number of topics under discussion is at times disorientating – for example we move directly in Chapter 15 from an interesting discussion about how campaigning against cuts to public spending on legal aid in the UK can have unintended negative consequences, to Chapter 16 and consideration of how we speed up divorce proceedings in Belgium and France.

I am also left wondering – who is the book for? I don’t think that it is aimed at me. As a practising lawyer, any reading which isn’t of paperwork for the next case, must be slotted into increasingly precious moments of free time or when I am travelling back from court, often tired.

The contributors are all academics. Some have a direct and breezy style but others do not. The book is full of sentences such as: ‘a structural view of vulnerability suggests an absence of agency, whereas an individualistic conceptualisation of vulnerability obscures the structural factors that play a role in people’s vulnerability’. Or ‘This economistic interpretation is belied by the juxtaposition of state withdrawal from responsibility…’ I think I understand what that means. But I have to run sentences like this through an internal translator in my brain as I read, which slows down the process and impedes understanding.

This underscores for me the importance of language, as it is used in the laws itself and our discussion about the laws. It seems to me essentially quite odd to embark upon a discussion of delivering family justice without any apparent focus on the substance of the laws themselves.

For example, why are many laws drafted so that only highly trained professionals can realistically attempt to decipher them? As the broad consensus is that family law is likely to involve vulnerable people, surely the most fundamental barrier to delivery of family justice is to have laws and discussions of those laws in language which is not accessible to the vast majority of those who need to understand what the law is and does.

I note with interest that the first two chapters make no reference at all to the substance of the law but focus instead of other ways that access to justice could be improved. I note with surprise that of the thirty one measurable goals identified by the Canadian Bar to improve access to justice, Rachel Treloar in Chapter 1 is immediately struck by the following three:
• More people centred law practices where services are provided by integrated teams
• More focus on access to justice in law schools
• Clearly setting out the expectation that all lawyers will do pro bono work at some point in their careers

The gulf between academic perspectives and how practitioners operate and deliver, seems very wide at this point.

What does this even mean ‘in the real world’? With all due respect to the Canadian Bar, I am intrigued as to how can ‘setting out’ an ‘expectation’ that lawyers will do pro bono work could be seriously considered by anyone as making even a dent in government policies which show a hostility to the legal process in family courts in general, and publicly funded lawyers in particular.

The lawyers who are trained in the areas of work where such pro bono work is needed are the least likely to be able to afford to work for nothing. I don’t care how much emphasis is put on ‘access to justice’ to law students; if they graduate and go on to specialise in construction or pensions law they are of no use to me or my clients in care proceedings.

If we have lost most of the state funding for lawyers in family cases, its unlikely we will get it back in this new age of austerity. So we need to be looking at the law itself and how we help people understand it. Chapter 3 does engage with thinking about substantive law reform as ‘one way’ of responding to some of the problems of accessibility to family justice, pointing out that Australian reforms to child support law which were intended to generate greater fairness, instead resulted in a scheme of guidelines so complicated that the parties were unable to understand it at all.

And it is surely this problem which is the fundamental bedrock of why we are in an increasingly parlous state. If we really are not going to help vulnerable people pay for lawyers then we have to make the law understandable and accessible. The 21st Century ought to be a wealth of opportunity to allow this to happen, with ease of access to electronic information that can constantly be updated.

However, in the UK, the government cannot even manage to update its electronic version of the Children Act (via which still tells me I can apply for ‘contact’ and ‘residence’ orders despite the Children and Families Act 2014 being in force since April 2014.

Certainly ‘Delivering Family Justice in the 21st Century’ is an interesting read. But the problems facing lawyers on the ground now are immediate and practical. And we need some immediate and practical solutions, which I do not find clearly illuminated here.

As John Eekelaar quotes from the Ontario Law Reform Commission:

‘For the law to be effective for those who are subject to it, access to knowledge about the law and capacity to negotiate the law, with or without assistance, is as important as ‘the law’ itself. A ‘good’ statute has limited value if it is difficult to understand and accessing the rights it provides formidable.’

As John Eekekaar concludes:

‘Family Justice is concerned with more than simply bargaining, fairly or otherwise. It is concerned with upholding and underwriting some elemental features of personal relationships. It cannot do this without the law, and effective means of upholding it’.

I agree entirely that both the law and those who can provide professional assistance to navigate the law will continue to be essential. We cannot all be ‘rational economic actors’. Some people are vulnerable, by virtue of their age, understanding or environment. How we decide to protect them – or not – says very important things about our society.

However, for further consideration of how we ‘deliver family justice in the 21st century’ I think it will be important and necessary to put more of a focus on the laws themselves. Otherwise, there is a risk that we are simply trying to re-arrange the deckchairs on the Titanic by tinkering with pro bono work or attitudes to mediation.

Book Review Children & Families Act 2014 – Family Justice Under The New Law

Children & Families Act 2014Children & Families Act 2014 – Family Justice Under The New Law (Noel Arnold, The Law Society & Association of Lawyers for Children, 2014) (£49.95)

The author Noel Arnold is the Director of Legal Practice at the Coram Childrens Legal Centre (@CCLUK) and is a member of both the Association of Lawyers for Children Executive Committee and the Law Society’s Children Law Sub-Committee. He often writes on the topic of Children Law, including occasionally on Pink Tape. Noel tweets as @Children_Law.

This book is one of The Law Society’s “Legisation Guides” series and as such was never going to be the most rip-roaring read of 2014. But it is in fact interesting, and I would wager that hidden away in its pages will be a small handful of genuinely missed points that even the most astute practitioner will have missed when brushing up on the impact of the wide ranging Children & Families Act 2014. I read it pretty thoroughly when it was passed, and so although much of what was in the book was familiar I have picked up a few nuggets to store away for some time in the future when they will come in handy.


So for example, one of the points that I picked up for the first time was in connection to the new provisions for the grant of parental responsibility. Although I had recognized that it was now possible for the court to grant parental responsibility to any person named in a “spending time with / contact” as well as a “living with” child arrangements order, the penny had not dropped that this functioned also as an indirect mechanism for a grandparent to apply for a s8 order without requiring leave. As such, the award of PR to a non-carer (most obviously a granny enjoying contact that may function as something of a “respite” or bolstering of a placement with parents) acts as a route for the stepping up of that granny’s role should the wheels fall off the parental placement. To some limited extent this deals with the requests from Grandparents organisations in the course of the FJR regarding the removal of the leave requirements in s9 CA 1989, albeit in a less than obvious way.


There is a useful discussion of the wisdom and necessity of s13 C&FA, the provision about expert evidence which is a section that is, strangely, not drafted by way of an amendment to the day to day statutes but which stands alone, unincorporated (and potentially forgotten).


Also interesting are sections relating to parent carers and the enhanced role of the Office of the Children’s Commissioner, who is now tasked to promote and protect the rights of children in England (previously to promote awareness of the views and interests of children) and who may now provide advice and assistance to any child living away from home or receiving social care (a group towards whom she is directed to have particular regard), and who may make representations on behalf of such a child to any person who is providing accommodation or exercising functions in relation to that child. It will be interesting to see how this develops in practice, although as the author states it does not appear that the intention of this provision is to develop a full casework role for the Commissioner’s office.


Noel Arnold has written this book in a clear and straightforward way, summarizing for each provision its aetiology and purpose, and highlighting its interplay with the Family Procedure Rules. It offers in places sensible, if brief, criticism and querying of whether or not a particular provision is likely to achieve its stated purpose or to advance the broader objectives of doing justice more speedily.


Because it follows the structure of the Act itself, the book hops from one area to another – but this is no more disconcerting an experience than reading the Act itself, and can hardly be helped. For the Children & Families Act 2014 covers a multitude of sins, some of which are of direct and pressing relevance to family law practitioners, others of which are of tangential relevance or remote interest only. The book is clearly written with the family practitioner in mind, focusing it’s energies on those sections of the Act most directly relevant to day to day family law practice. Sections covered in less detail offer a practitioner a helpful set of reference points for future research or reading should that prove necessary.


The book is a surprisingly quick read – partly due to it’s clarity of language, and partly due to the fact that a significant part of the bulk of it is the Act itself, which is handily reproduced in full.



Book Review : Family Justice : The work of Family Judges in Uncertain Times

Family Justice – The Work of Family Judges in Uncertain Times, John Eekelaar and Mavis Maclean, Hart Publishing 2013.


I anticipated that this book would be a dry old read but in fact it was (to me at least) really rather interesting, and gave me some helpful ways of understanding and articulating the judicial process and the nature of the family justice system in this jurisdiction – both its strengths and it’s weaknesses.

It is easy to say “but that’s madness” in response to the latest cut or hairbrained reform proposal. It is harder to say why, to articulate the delicate balance and the hows and whys of our arrival at the present imperfect but nonetheless sophisticated system. I will find it a little easier now I have this book under my belt.

I’ve been in the field for a decade or so which makes me a child of the Children Act generation – I know of but did not experience the dark days before its inception. For those who want a longer view than their own first hand experience provides this book is useful. And for me it reinforced some of the instinctive rebuttals I often issue to critics of the system – it gives an evidential underpinning to the arguments based on logic and experience. It is easy (and right) to criticise the weaknesses of a system that does not effectively enforce its orders – but I’ve yet to find a critic that has a better solution that does not create its own problems. The “enforcement paradox” for example is no doubt a concept not new to this publication, but it was for me a new way of articulating a well understood phenomenon for which I am grateful.

So. This book conducts something of a comparison between our approach in this jurisdiction and in others, for example Australia. It looks at the Family Justice Review and subsequent reforms, proposed and enacted. It worries openly about the direction of travel and the future, frets about the characterisation as all time spent as “delay”, busts a few myths about the efficacy of mediation and PIPs as a panacea, and reminds us of the multi-layered role that family judges actually perform – in private law at least far more dispute resolution, solution finding than decision making.

It really is an excellent and thought provoking read, essential for anyone who wants to discuss current reforms in their proper context.