What are the challenges for Family Law after May 7th?


A Personal View

The last five years have been unusually difficult ones for those working with people going through relationship breakdown and experiencing conflict in the family; a rather chaotic and disparate set of courts, lawyers, organisations, government departments, private agencies and individual professionals often, rather optimistically, referred to as the Family Justice System (FJS).

A personal view from Paul Foster

Since the financial crisis of 2008, the FJS has been stressed by a savage cut in resources and faced strident, if ideologically contradictory, criticisms.

It was said to favour mothers over fathers, rich husbands over wives, both to needlessly remove children from their parents and to not protect children well enough from them, and always to take far too long to make any decisions, be they good or bad.

There have been some reasons for optimism. Society’s commitment to valuing diversity found complete expression in the Equality Act, 2010 and Gay Marriage passed into law with relatively little controversy. Generally though, the sea has been rough and the headwinds strong.

The forthcoming general election gives us a chance to take stock and set a new course for the next five years. What then are the major parties offering in their manifestos and what will be the challenges whoever wins?

It is fair to say that the intense focus on the economy, immigration and Europe mean that issues of law and order do not figure prominently for any party and family law is scarcely mentioned.

Whilst it could be said that this neglect is a reflection of voter concerns, we should not forget that each year the courts make decisions which affect the lives of hundreds of thousands of children. These are not trivial matters. The decisions made now will come home to roost in the future.

Digging deep into their respective offerings reveals that the main parties are at least somewhat aware of public concern about the drastic restrictions on access to justice caused by recent cuts.

These cuts have been so deep and rapid that Law and Justice are once again at risk of “being open to all like the Ritz Hotel.” Rights have no value, and duties cannot be enforced, if the person who would benefit from them cannot afford, or does not know how, to effectively put their case before a Judge.

This is a quick distillation of what each party is offering:

The Conservatives promise to review legal aid so that it can, ‘continue to provide access to justice in an efficient way.’ I can’t help observing that this proposal seems to beg a rather important question as to whether it does so already. The word ‘efficiency’ seems to imply there will be even less money available in the future.

Labour has promised not to implement proposed changes to criminal legal aid and to revoke the new payment regime for judicial review. It will widen access for victims of domestic violence and make sure that access to legal representation remains available to those who need it. It is unclear exactly what this will mean for civil legal aid.

The Lib Dems also promise to review criminal legal aid and to make no further savings (‘savings’ are cuts one approves of; just like ‘investment’ is ‘good’ public expenditure whilst ‘bad’ is ‘wasting hardworking tax payers’ money’). They also they will carry out an immediate review of civil legal aid to ensure legal aid is available to all those who need it and devise a strategy that will deliver advice and legal support to help people with everyday problems like debt and social welfare.

The Green Party promises to reverse all legal aid cuts; although one might reasonably wonder if they will be in a position to influence, let alone make such decisions.

Without further comment I simply note that UKIP propose putting one trained legal adviser in each food bank.

The challenges for the future were neatly addressed in another manifesto issued, not by a political party, but by Resolution, the national charity representing family solicitors.

Their manifesto identified six key areas where changes are needed to the FJS.

  • To protect vulnerable people going through separation
  • To help separating people reach agreements out of court
  • To introduce a Parenting Charter to help parents understand their responsibilities when they separate
  • To allow people to divorce without blame
  • To help people understand how their divorce will affect future finances
  • To provide at least basic legal rights for couples who live together if they separate

These seem to me to reflect reasonable concerns and define desirable objectives. Some will need money and thus be dependent upon the general health of the economy and the political priorities of the government. But they also will all need something else, namely a moral conviction translated into action that we should privilege the vulnerable and children over and above commercial and personal interests.

We undoubtedly live in challenging times but this cannot be a reason for not putting children and the vulnerable first in our decision making. Only a society which consciously does this deserves to call itself healthy or can look forward to a peaceful and fair future.

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