The Family Justice Review – Part 2

The Family Justice Review has been published today and its full 228 pages can be read  http://bit.ly/sSx0IF David Norgrove Chair of the Family Justice Review identifies problems and weaknesses within the current system and recommendations on how to improve matters moving forward.

I have addressed a number of the recommendations relating to the court system and children in part 1 of my blog http://bit.ly/v3OTk9

This blog focuses upon the recommendations for divorce and financial arrangements. The review has recommended a revised divorce process to enable individuals to complete this themselves. It recommends that an “information hub” is established where they will access and “online divorce portal” enabling them to have all of the information they require to complete the application on-line. The system is to be designed to have the necessary built-in checks to prevent the frequent errors that now occur but would be processed by a central court processing centre.

The same grounds and conditions apply as at present but if the acknowledgement of service is returned and doesn’t contest the divorce then a court officer will issue the decree nisi, thus allowing the application for decree absolute to take place in the current timescales. If the ground is contested the application would be transferred to the applicants local court for judicial consideration.

The focus where possible are that all issues in dispute should be considered together whether in mediation or consolidated court hearings. However there is a warning that “care should be taken to avoid extra delay that this may cause particularly in relation to children”

There is a recommendation that the Government should establish a separate review of financial orders to include an examination of the law. This would encourage modern social trends are reflected in law and by the judiciary.

There is concern expressed about the impact of the legal aid reforms which is to be monitored so as to ensure that the supply of properly qualified family lawyers which is vital to the protection of children is not damaged significantly.

Most lawyers will welcome a number of the recommendations that have been made as the Law Society and Resolution have been consulted as part of the review however there remains a significant cost which is detailed within the review that will have to be met to implement the recommendations which during the at the current economic climate may mean that these are delayed.

There are some of the usual re-branding exercises that invariably are recommended with most reviews with the most notable being that “Alternate Dispute Resolution” which most people have got to grips with now and is known as ADR should be changed to “Dispute Resolution Service”. For those of us who enjoy cricket the DRS (Decision Review System) is already in use and it would be dangerous to confuse both.

 

 

 

 

 

The Family Justice Review – Part 1

The Family Justice review has been published today and the full 228 page review can be read here http://bit.ly/sSx0IF The Review chaired by David Norgrove has made a list of recommendations including how to ensure that the child’s voice is heard and truly central to the operation of the family justice system.

It proposes to create a Family Justice Service which should have a strong central and local governance. The recommendations seek to ensure that there is robust judicial leadership to support the culture change amongst the family judiciary.

There are recommendations as to proper planning for case management to deliver a consistent and effective service in the courts. There is an aim to ensure the courts are as user-friendly as possible and that the current three tiers of court should be where possible in one building with a single point of entry.

There are recommendations for those that work within the new Family Justice Service, namely that they have the appropriate skills and knowledge to deal with families. A pilot scheme where Judges and Magistrates learn of each others decisions and outcomes for children and families on whom they have adjudicated.

More training for staff and the judiciary encouraging leadership responsibilities.

Perhaps the headlines have been grabbed by the private law Children Act recommendations where it states that “No legislation should be introduced that creates or risks creating a perception that there is a parental right to substantially shared or equal time for both parents”

This has perhaps been seen as a blow for those organisations seeking a greater acknowledgement of the role of fathers but as explained in the report, the evidence from countries such as Australia where legislation has been enacted is that this has led to damaging consequences for many children as the “shared” principle became counting the hours spent with each parent and not the quality time.

There are many other aspects to the review which I will deal with in subsequent blogs.

 

 

 

Compulsory mediation – the end of litigation?

There have been a number of articles in the press this weekend, including the front page of today’s Times, regarding the government’s proposals to make it compulsory for divorcing couples to try mediation before commencing proceedings at court.

David Norgrove has said that the family court service is under “tremendous strain” and therefore, whilst not pointing the finger at lawyers, The Family Justice Review appears to advocate that the role of the lawyers within family law should be reduced to a minimum. Are lawyers to blame?

Mediation is a way of resolving disputes and can work very well between many couples with specific issues such as the arrangements for children. The mediators are neutral and will not take sides. Mediation is not always appropriate or possible. In cases where there has been domestic violence it is not usually appropriate to place the abused in the same room as their abuser and expect them to try to negotiate a settlement when in the past such disagreements have been settled by violence.

The mediator cannot impose a settlement upon a couple and either party can terminate the process at any time if they have an irreconcilable difference of opinion. Will the mediator be able to pose appropriate questions to consider the disclosure of an individual? An article in the Telegraph on the 15th October  indicated that one in ten men would hide assets from a partner in divorce. If the partner has not been involved in the running of the household finances how would they be protected? The court system is designed to protect the vulnerable.

Would compulsory mediation delay matters and increase costs? Couples currently have a choice and their circumstances often determine which often is the best option for them. Lawyers should always discuss the options available to an individual including the alternative dispute resolution methods to enable every client to make the choice as to which direction they want to go. A lawyer should always be acting in a client’s best interest based upon what they are told about a client’s case and they will have to justify their advice by producing a costs benefit analysis.

Clients are fully aware that it is their money that is being spent. They are increasingly looking at ways to reduce their outlay to lawyers and therefore want all of their options set out early with the estimate of costs.

Most couples are able to resolve matters without court proceedings.  Some will begin the process but conclude a long way before a final hearing and perhaps the current system can be reformed to shorten timescales but with values of pensions taking at least three months to produce, there is no quick fix.

Most couples will view court proceedings as the last resort. Indeed many are becoming increasingly aware of collaborative law which advocates not going to court. Many lawyers have enhanced their own personal skills to qualify as collaborative lawyers enabling them to really understand their client’s needs.

We will need to see how these plans may work in practice. Will couples be required to undertake a certain number of mediation appointments over a certain timescale? Who will determine whether or not mediation is appropriate?

I represent many UK expats who live and work overseas but their spouses return to the UK and either issue here to secure the court’s jurisdiction which they believe is best for them or because according to law it is the most appropriate jurisdiction for the case to be heard. How would my UK expat clients attend mediation? How should that be funded?

No doubt we will have to wait and see what the formal proposals are but I would have to agree that reforms are necessary.  The proposals need to ensure that if the courts can’t cope and CAFCASS can’t cope then appropriate resources are in place. It would be foolish to think that  mediation is the answer if it is put under just as much pressure.