Sir James Munby, President of the Family Division of the High Court and Head of Family Justice for England and Wales, is once again at the centre of a media storm. In a recent lecture to the University of Liverpool, as part of the Eleanor Rathbone Social Justice Public Lecture Series, he appeared to suggest that Britain should ‘welcome and applaud’ the collapse of the nuclear family.
The backlash which followed was as swift as it was predictable, generating inflammatory headlines and criticism from special interest groups. The Daily Mail expressed “fury at top family court judge who said we should applaud the end of the nuclear family”[i]. An editorial in The Sunday Times accused him of “trashing traditional families”[ii].
To no one’s surprise, when you read the full lecture it’s clear that the remark which drew such ire was taken out of context. The main body of the speech was a thought-provoking call for the reform of the family justice system[iii], an aspiration which is shared by the vast majority of family lawyers.
Far from celebrating the demise of the family, Sir James celebrates families in every shape and form, including those which would have been beyond the contemplation of Eleanor Rathbone when campaigning for reform nearly a century ago.
Whatever the family model, when a relationship breaks down it can have a devastating impact on those concerned, particularly children. In this context it is regrettable that the headlines have overshadowed Sir James’s call for a humane rethink of the way we deal with family disputes.
A society which encompasses the modern family deserves a modern family court system. One which can both provide families with a framework capable helping them resolve family disputes and secure social justice for the families involved. Sir James identifies four barriers to this, arising from the way that the family courts are structured:
- Complex procedures which prevent the court from addressing a family’s problems in a streamlined way and which increase costs, delay and stress.
- The failure of the family court to identify and address the underlying cause of a dispute and treat the problems of the whole family by engaging the necessary therapeutic and other support systems.
- Delineation within the wider court system often resulting in parents and children being the subject of parallel proceedings across a variety of courts with conflicting objectives and little collaboration.
- The inability of the family court to direct how the resources available to a public body, such as a local authority, are used and the impact this has on the decisions which the family court is tasked with.
The solution Sir James suggests is a ‘one-stop-shop’ family court with enhanced jurisdiction, capable of dealing holistically with families’ problems. This call for far-reaching reform makes for interesting reflection though Sir James himself acknowledges that the road to achieving it is likely to be long and hard.
Sir James’ comments come at a time when family-law professionals are increasingly vocal about the urgent need for reform in other areas. Since the legal aid cuts of 2013, there has been a 22% increase in family cases where neither party has legal representation. The need for easier access to justice could not be more pressing[iv].
In areas where the justice system can act on its own, without new legislation, there has been some progress. Since May 2018, separated couples can apply for divorce online, in a process said to take less than 30 minutes[v]. In the first month of the pilot project, 2,600 applications were submitted online. Just 0.5% of those were returned as incorrectly completed, compared with 40% of paper applications. With 91% of people saying that they were satisfied with the service, the project is regarded as a success.[vi]
However a key concern for family practitioners is the need for legislative reform, which many feel is long overdue in certain areas. A spotlight has recently been shone on the undignified process and the destructive impact of the existing fault-based divorce regime by Tini Owens who wishes to divorce her husband. He does not agree to the divorce, leaving her with the burden of trying to prove ‘unreasonable behaviour’.
Mrs Owens is awaiting the outcome of her appeal to the Supreme Court[vii] and it remains to be seen whether the Supreme Court will interpret the existing law in a way which provides Mrs Owens with an escape from a deeply unsatisfactory situation. As almost everyone agrees, neither the court nor Mrs Owens should be in this position in the first place. She is an adult. She wishes to end her relationship with her husband. She should be able to do so.
Time for parliament to do its job
But it is not the job of the courts to legislate. And a change to the law is what’s needed to enact the reform which 90% of family law professionals believe is necessary[viii], to help separating parents reach agreements out of court and reduce conflict. 56% of all couples who petitioned for divorce in 2016 did so on the grounds of ‘fault’[ix], often to avoid separation periods of two or five years which have many negative practical and emotional obstacles for families.
Resolution, an organisation of 6,500 family law professionals committed to helping people find constructive ways to resolve family disputes, has championed the scrapping of fault-based divorce as part of its six-point Manifesto for Family Law[x]. The introduction of a system of no-fault divorce which is fit for purpose is also supported by The Times[xi], as part of its Family Matters campaign, and by the Marriage Foundation[xii], a pro-marriage pressure group established by former family High Court judge Sir Paul Coleridge.
It is no surprise that the campaign attracts such widespread support when you consider the recent research study led by Professor Liz Trinder at the University of Exeter[xiii] which found no evidence that fault prevents or slows down the decision to divorce and some evidence that is may shorten the time from break up to filing. It confirmed that the requirement to apportion blame can create or exacerbate parental conflict, with damaging consequences for children.
Encouraging signs of a shifting consensus
There is an optimism within the profession that the ‘no fault divorce’ campaign is gathering momentum and now may finally be the time for change. It remains the case, however, that reform in other areas of family law is long overdue. It has been more than 10 years since the Law Commission report[xiv] highlighting the inadequacy of the range of legal remedies currently available for cohabiting couples. The report also set out proposals for a scheme, similar to that adopted in Scotland in 2006, to provide legal protection for cohabiting couples who separate. Both marriage and divorce rates are declining[xv] and cohabitation is on the increase[xvi], with 3.3 million families currently cohabiting.
Many people in cohabiting relationships mistakenly believe that they have the same legal rights as those who are married. The reality is that, in the unhappy event of a relationship breakdown, they may be at severe financial risk. If, as Sir James’ asserts, the aim of the family justice system should be to promote social justice for the families involved as well as facilitating the resolution of disputes, then it must be given appropriate tools to do the job. The current legal framework for cohabitees is woefully inadequate.
It will be interesting to see whether the call for reform in any of these areas gains the parliamentary traction it so deserves in the coming months and years. To quote Sir James once more, “we need to recognise that, whether we like it or not, we live in ever–changing times. And we need to ensure that our family law remains adequate to deal with our modern society.”[xvii]
By Hannah Minty, Senior Associate, Russell-Cooke
[vii] http://www.bailii.org/ew/cases/EWCA/Civ/2017/182.html (Court of Appeal judgment). Matter listed before the supreme court on 17 May 2018 and judgment is awaited.