A family justice system fit for the 21st century

21st February 2019

A family justice system fit for the 21st century

I am delighted to report as Chair of the Family Committee of Birmingham Law Society, that our Committee and therefore our membership, is growing.

The Committee continues to be a forum for raising awareness of innovations in practice, knowledge sharing and debate on process and procedure.

In Family law, we are in the midst of strident changes with regards to the proposed divorce reform, changes to procedure relating to financial claims arising out of divorce and proceedings involving children.

The court modernisation programme has seen the introduction of the online issue of divorce proceedings for nearly 12 months.

To coincide with this, in November last year, we completed a response to the consultation on reform to the current Divorce Procedure to seek to do away with a faultbased divorce. Divorce is currently based on reliance of one of five facts as the basis for proceedings to be issued.

Family lawyers have called for these changes for a considerable time to stop the opportunity for people to be locked into a marriage, by disabling the opportunity for the person responding to divorce to halt the proceedings.

Birmingham Family Court has been at the forefront of changes in the court system for nearly 12 months. This has been implemented by the procedure for allocating cases to specialist judges in matrimonial finance cases. This was originally the vision of the former President of the Family Division, Sir James Munby.

The courts in the West Midlands has been involved in implementing changes for five years, but Birmingham was the first court to run a successful pilot of the scheme from April 2018.

In October 2018, this Scheme was rolled out in nine other courts across England and Wales.

In February, this year a pilot has also been introduced for first hearings involving matrimonial finance cases to take place by video.

Innovation to implement change is planned for court proceedings involving children.

Following the introduction of the Child Arrangements Programme in 2014, Anthony Douglas, CBE, the Chief Executive of the CAFCASS (Children and Family Court Advisory and Support Service), has outlined five proposed changes to practice.

This has the support of the current President of the Family Division, Sir Andrew McFarlane. The first of those is to promote Alternative Dispute Resolution.

This “call to action” has been as a result of the significant increase of cases before the court and the significant rise in the number of persons not having legal representation in those proceedings over the last five years.

Mr Douglas believes that an estimated one-quarter of proceedings do not contain child protection or welfare concerns and should not be in the court system.

He went on to say: “The court process risks escalating conflict to a point where is becomes harmful.”

He acknowledges the arbitral function of the court but, also the danger of the court being viewed as a “third parent” to discharge decisions relating to a child’s upbringing.

He comments that a better way of dealing with such cases would be the gatekeeping of cases to other processes which have a proven track record of success, such as mediation.

We have seen that rather than other ways of resolving disputes outside of the court process being viewed as “alternative”, mediation and collaborative law processes are now starting to be viewed as “the norm”.

Further, when looking at which approach may best suit a particular family, we as lawyers are recognising the benefits of involving non-lawyer professionals at the earliest stage, to prepare a client to consider the options available.

For example, to follow suit with international family law we are seeing the involvement of Family Consultants engaging with clients to prepare them for mediation and collaborative law processes in particular.

Family Consultants for example, are qualified counsellors, family mediators, clinical psychologists, psychotherapists and family therapists who have experience of working with individuals, children and families and are registered with their relevant professional bodies.

The Collaborative process is fourway, face-to-face meetings between the people involved and collaboratively-trained lawyers and can include other professionals, such as financial advisers or Family Consultants. There is therefore a significant opportunity and responsibility to all professionals working within the family justice system to embrace inter-disciplinary practice of other professionals and lawyers working together – to achieve better outcomes for families.

A date for the diary – our bi-annual Birmingham Law Society Family Law Conference will be taking place in October, this autumn – please look out for further details shortly.

Claire Darley, Chair of the Family Committee of Birmingham Law Society and Partner at Higgs & Sons



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