So the Government has published its Families & Relationships Green Paper in which it proposes a fundamental review of the Family Justice System and a number of other reforms. Like John Bolch at Family Lore I'm not sure what this really adds up to. There are a number of press releases from the relevant departments: DCSF and MoJ. So what does it all mean for the family justice system?
Primarily, there's a review which we won't know the outcome of until 2011, and right now we don't even know who will conduct it. Judging from the press releases it seems to be predicated upon the assertion that the problem is the adversarial nature of court proceedings and the fact that they heighten conflict. Jack Straw says:
'We know that for many families the current family justice system is proving far too complicated, and its adversarial nature can lead to bitter, lengthy court hearings, prolonging what is already a stressful and emotionally draining experience. '
So in summary, the Courts make it worse. Of course it's a no brainer that the adversarial nature of proceedings can increase the temperature but that does rather dance over the fact that it is only the most highly conflicted cases that end up in court at all. Most couples do find other ways to sort things out, and even those that end up in the system must pass through a barrage of non-adversarial processes designed at resolution (in court conciliation, lawyer assisted negotiation etc.) before they ever get to an old fashioned trial. And in the current circumstances its not the court system per se which worsens conflict, and it's not because it's all too complicated - it's the lack of resources available to properly run the court system that leads to delay, frustration and despondency, and perpetuates or exacerbates conflict.
And one might get the impression from reading the press releases that the alternative of mediation is something that is practically unheard of. That despite the fact that a mediation referral is compulsory for anyone publicly funded, that alternative dispute resolution services including collaborative law are offered as an alternative by many family solicitors, and that the court itself encourages mediation and provides in court conciliation. Again, many many families are diverted from the courts already - whilst encouraging more out of court resolution is a good thing, there will always be those conflicts which cannot be resolved without the help of the court. And for those cases the system absolutely must work properly. I don't see anything in the governments proposals that will make the system more effective for that small slice of the most difficult cases - no money for Courts, CAFCASS or legal aid. Fundamentally a family is made up of two parents and child - if one of those parents refuses to mediate, is implacable or unable to put aside the conflict - how does the magic of mediation help that child, the other parent? Someone has to resolve that situation not by agreement but by making it happen. Who else but a Judge? Does the Government secretly hope that if they stick a few adverts for mediation on direct.gov.uk that all private law cases will be magically diverted from the court system and hey presto the LSC and CAFCASS budgets can be slashed by half?
But what really doesn't gel for me is that, hand in hand with the proposition that we must get all these families out of the courts (because courts just make things worse), is the move to make it easier for grandparents to bring a court case for contact. Sorry? Am I missing something?
- Firstly, the vast majority of grandparents will never have any need to apply to court for contact unless it is because of a difficult relationship breakdown between the parents of the child, which has led to them being cut out. So the Government wants the parents to go to mediation, but wants to make it easier for their own parents or in-laws to drag them into court by being able to launch their own application for contact in the court? Genius.
- Secondly, most grandparents do their utmost to avoid being drawn into the dispute between the parents - they support and they wait for things to get better. Sometimes they even broker a delicate peace treaty for the sake of the children or facilitate parental contact where the parents can't meet without fighting. Why would we want to encourage them to become a part of the problem, to compete for a slice of the child's already salami sliced time?
- Thirdly, unfortunately some grandparents really do their best to foment discontent and actually ratchet up the disharmony. They side with their offspring and whisper and gripe and wind them up. Do we want that type of grandparent to be able to launch proceedings at the drop of a hat? Imagine a grandparent who can get legal aid where their offspring cannot pursuing an agenda effectively as a proxy for their child...Grandparents are often hugely important and courts recognise this, but at the end of the day the courts priority is and should remain a child's contact with her parents.
- Fourthly, we all know that where a grandparent is making a sensible application to the court they will almost inevitably be granted leave - the leave requirement does not prevent grandparents pursuing contact and there is really no pressing need to remove it.
There is some potentially positive stuff in the paper about strengthening support for grandparents and extended family or family friends who are caring for children who cannot be with their parents - this is an area that could certainly do with looking at. Grandparents are often very unsupported by local authorities who are responsible for children in care proceedings, and can be taken for granted or seen as the cheap and easy option. Informal arrangements made outside of care proceedings often mean that needy families muddle along without services that could really help. Pa 3.59 is not explicit but it seems to be a reference to the difficulties obtaining legal aid for extended family members within care, residence or SGO proceedings.
Overall though I'm not convinced this is really a coherent package of reform for families. It sounds superficially attractive to say: "more mediation, less courts, pat on the back for grandparents - job done", but it is an odd mix of potentially ill thought through proposals. To me it has more than a whiff of being aimed at soothing certain voter demographics and influential groups. There is not a lot in the way of concrete promises or reform - much of it is still up for grabs. These are only proposals and the review will, one hopes, consider the kinds of issues I've raised above. For all the guff in the press releases the actual terms of reference of the review are encouraging and certainly provide scope for the review to highlight the need to increase resources to the courts and to find ways of promoting the welfare of children whilst minimising delay. So it could produce a genuinely fundamental set of proposals for reform and improvement.
That said, goodness only knows what state the system will be in by the time the review report sees the light of day. I'd bet that some of my clients will still be crawling through the system by the time that happens. It's a cruel irony that we must adjourn this argument whilst we wait an interminably long time for the crucial report...