The Family Justice Review has now published its draft on proposed laws they would like to see come to life and which are designed to tweak existing laws to help improve the legal processes in the family courts.
This month, The Law Society has responded to that draft legislation, with the eight page document expressing the Society’s agreement over certain areas and its concerns over others. The response itself was created, as the document tells us, by the Law Society’s Family Law Committee and Children’s Law Sub Committee. Here is a quick summary of The Law Society’s views on the draft legislation (and for what it’s worth, our own thoughts in italic next to each section):
  • Family mediation information and assessment meetings (Also known as MIAMS): The Law Society agrees that such meetings, which are designed to inform parties of their options regarding forms of mediation, should be compulsory rather than something more akin to a choice, but would like to see the law clarified in relation to exemptions, relating to costs and some requirements regarding MIAMs to be left to professional judgement rather than legislation, such as the way in which MIAMs are set up. (We remain concerned about mediation as an effective tool to make everyone’s lives easier – if we don’t solve the emotional conflicts first, or at least find intelligent ways of stabilising them, mediation will be of no use whatsoever).
  • The Law Society also welcomes the wider range of choices for alternative dispute resolution (This is a good step forward and away from the adversarial process, but once again, trying to get parties to broker deals when they are emotionally conflicted is not going to yield good results for anyone. How about some holistic alternatives, please).
  • They are also in favour of changing the terms ‘Contact’ and ‘Residence’ in the respective Orders to Child Arrangement Orders (CAOs) but are concerned about the way in which these Orders are being defined, as they feel they may lead to more power struggles between parents (In principle we agree with changing the terms; it may help, but the whole system has to fall in line with a more collaborative ethos, otherwise everyone’s going to be very confused).
  • Control of expert evidence, and of assessments, in children proceedings: The Law Society want clarification of proposed legislation in this area, as they feel it may cause confusion but they agree with the view that social workers who give evidence on behalf of the local authority or the NSPCC in proceedings to which that authority or the NSPCC is a party should not be deemed to be experts for the purposes of this part of the legislation (we find this section very interesting – if the court assumes such evidence is not to be classified as expert evidence will that also mean that the status of social work reports and oral evidence from social workers will be given less weight?)
  • Time limits in proceedings for care or supervision orders: The Law Society’s response to this section was diplomatic. They state they have no comment, but go on to qualify that with…… a comment. Their view is basically that time limits may be suitable for some cases, but not others and that extensions should be made in the right circumstances. (For us, it’s very simple – time limits must be worked to, but where several choices need to be considered and time is running out, it makes no sense at all to remove a child and place them into care because everyone’s on the clock. Getting it right at the thirteenth hour is better than getting it wrong for the rest of a child’s life).
  • Care Plans: The Law Society agrees that legislation should be first and foremost about the welfare of the child rather than ‘permanency’, or put another way, families must be kept together wherever possible and when placements occur, to ensure that contact with birth parents and siblings must be considered and that the judge must always be given the full care plan (we would go one step further and insist the judge reads the entire care plan, from cover to cover).
  • Repeal of restrictions on divorce and dissolution etc where there are children: The Law Society supports repealing these restrictions, where a divorce is not contested by applying the model of no-fault divorce. (We are not quite sure what this would mean in practice, as although we are in favour of removing unnecessary admin and agree with no-fault divorce as a concept, we are aware that no-fault divorce varies in states across America and can have a dramatic impact on the fairness of hearings in relation to contact and finances. We will have to wait and see what develops).
  • General principles on marriage and divorce: The Law Society is concerned by the conflicting messages the draft legislation puts forward: it aims to repeal certain sections which encourage supporting families going through marital breakdown so that less distress is felt by the parties and keeping an eye out for any vulnerable members of the family, whilst encouraging the institution of marriage and trying to help couples save marriages which appear to have broken down. The Law Society’s view is that families need to be supported regardless of which road they take when faced with marital breakdown and that the message relating to fault is further confused by the proposed on-line divorce portal and that further clarification is needed as to who will explain to divorcing spouses what the implications of fault may be. (We think Coleridge may have slipped the Family Justice Review a fiver for this nod to the institution of marriage. This is an unnecessary and inelegant way to approach family unions. Those who wish to stay married will certainly have tried, it really shouldn’t be the court’s remit to play adjudicator in relation to a couple’s decision to divorce. Live and let live, and whilst you’re at it, why not focus on providing an embracing and compassionate system, rather than one which seeks to impose its very narrow views on its citizens).