Martin Partington: Spotlight on the Justice System

Shortly before his retirement from the post of President of the Family Court, Sir James Munby gave an extremely interesting lecture at the University of Liverpool about what he regarded as the failings of the current family court system.

He developed two principal arguments. The first focussed on what might be called the core functions of the family court; the other offered a more ‘holistic’ vision for the family justice system.

In relation to the first, Sir James noted that the core functions of the family court involved three key issues

• determining questions of status – were a couple married or in a civil partnership or not;
• determining what should happen to the children of marriage; and
• determining the financial consequences of family breakdown.

He argued that the procedural rules and practices in relation to each of these questions were complex and resulted in potentially people having to go to court on more than one occasion to resolve their issues. Despite the unification of the family court under a single name, it did not and could not in practice operate as a ‘one-stop shop’.

It could be argued that these days questions of status were increasingly being determined on a ‘self-help’ basis (which would increase if the basic law on divorce were to be reformed and simplified) ; and that financial matters were being decided in special financial proceedings meetings taking place outside the formal court structure. Thus the courts were increasingly used for determining questions relating to children. But these trends should not mean that the issue of whether the family court could become more of a one stop shop should not be investigated more closely.

It was the second set of arguments – for a more holistic approach to family justice – that I found interesting. Sir James is a keen advocate of ‘problem-solving’ courts – courts that have the resources and expertise to try to deal with all the problems families may face (including, for example, criminal matters or public law issues such as immigration status) – so that families can obtain a secure basis on which they can build their future lives.

This is an interesting argument and reflects (although Sir James may not have been aware of this) research and policy development a number of years back which argued that people don’t have discrete problems (e.g. housing, or employment, or family – which are categories created by lawyers which don’t reflect how life is actually lived) but ‘clusters’ of problems. This led to interesting experiments, now regrettably abandoned for the creation of Community Legal Advice Centres or Community Legal Advice Networks, that could deal with clients in a ‘holistic’ faction.

These views are controversial, at least for lawyers, since they would mean cutting across long established categorisation of the justice system – into criminal, civil, administrative and family justice system – each with their own practices, procedures and traditions. For this reason, my hunch is that Sir James’ views may not be taken forward, at least in the short-term.

But I thought his arguments were rather refreshing, and worth thinking about.

You can read his lecture at https://www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf