Friday, September 07, 2012

LAW SOCIETY GAZETTE: All-Round Roasting for Family Law Reforms

Friday 07 September 2012 by Catherine Baksi

MPs, judges and expert practitioners yesterday condemned the government’s planned legal aid cuts and family justice reforms, warning that the fiscal imperative driving them will harm children.

Plaid Cymru MP and barrister Elfyn Llwyd said the Legal Aid, Sentencing and Punishment of Offenders Act, which from April removes public funding for most private family cases, will ‘change the whole landscape of family law’.

Llwyd told a seminar on the future of family justice: ‘The changes are likely to be detrimental to families, detrimental to access to justice and probably contrary to article 6 rights and others which come into play when a fair trial of issues is not afforded.’ He told delegates at the event, organised by the Westminster Legal Policy Forum, that the changes will not achieve the costs savings claimed by the government.

In his 20-year parliamentary career, LLwyd said that he had never seen such ‘intransigence’ from government than during the bill’s passage. He said: ‘This was a bad bill, it remains a bad bill and, unless some sensible government appraisal is urgently undertaken, the consequences for society at large and vulnerable families in particular are going to be little short of catastrophic.’

The removal of legal aid, he said, will leave courts ‘inundated’ with litigants in person and ‘curtail or undermine’ the principle of paramountcy of the welfare of the child as parents struggle to put across their points across in court. The result, he said would be a ‘huge surge’ in demand for court time with extra cost and delay - at a time when the government is also seeking to impose time limits in care proceedings. ‘How can they work against this most unfortunate backcloth?’ he said.

Llwyd said more use of mediation, the government’s proposed solution to problems, is not a silver bullet, and will not work for the vast majority of cases.

Aside from the impact of the legal aid cuts, speakers expressed concern over some of government’s planned initiatives to reform family justice, in particular, the imposition of a 26-week timetable for care proceedings.

District judge Nicholas Crichton, who set up London’s pioneering Family Drug and Alcohol Court, said the target was ‘helpful as an aspiration’ but questioned how many cases would realistically be resolved in 26 weeks. He said the focus should not be about timelines but ‘outcomes for children’ and warned ‘we’re heading for disaster’ if the time limit is treated as a ‘straightjacket’.

Chair of the Family Law Bar Association Nicholas Cusworth QC, said the ‘financial imperative’ driving the reforms will cause children to suffer and warned that the ‘over-emphasis on speed carries real dangers’. Both called for the appointment of more judges to improve continuity.

Crichton supported mediation information sessions in so far as they may reduce the number of cases going to court, but criticised the removal of legal aid in private law. ‘We have too many people going to court for the wrong reasons. If we take away their legal aid they will come to court unbridled and without the benefit of legal advice,’ he said. ‘Petty problems’ are already a burden, he said. ‘I don’t want to spend half a day disputing whether a child should be picked up at the police station or McDonalds.’

Plans to introduce into legislation a concept of shared or cooperative parenting were criticised by most, including the National Society for the Prevention of Cruelty to Children, as unnecessary and against the best interests of children.

Crichton said that courts already try to ensure children maintain relationships with both parents. He saw no problem including the concept in the welfare checklist, but said there should be no reference to the words ‘equal’ or ‘shared’. To do so, he said would lead to ‘20 years of litigation’ as parents seek to enforce rights that they think they have.
Comments at time re-posted article:
Equal parenting
Submitted by Kevin O'Reilly on Fri, 07/09/2012 - 14:47.
District Judge Crichton has vast experience of the problems which can arise when parents are unable to resolve parenting problems in the best interests of their children. It is therefore disappointing that he cannot picture a system which starts from a presumption of equality when it comes to the involvement of both parents. In the work place it has been the law since 1975 that there should be equality irrespective of sex, and if there are good reasons there will be a difference in treatment which reflects the objective requirements of the work place. I accept that there has been much litigation to ensure that such rights are enforced. However, legislation which prevents employers and the courts from discriminating has been in the interests of employers.

Why is it so difficult for Judges to understand that they have done great damage to children by their unbalanced view of the role of fathers? Social progress has rarely resulted form the wisdom of Judges, in the arfea of family law (and particularly the relationship between children and their father), the Judges have failed and are rightly seen as contributing to the problem and not the solution.

As an equality lawyer I was shocked to experience this prejudice first hand. In many cases the damage done to children by the prejudice of the Family Courts is permanent; but now there are politicians who are prepared to reduce the prejudice they should be applauded.

Equal parenting
Submitted by anon2 on Fri, 07/09/2012 - 15:42.
This assumes that fathers are keen and eager to participate in full parenting responsibilities after separation, which, in so many cases, they are not.
It is staggering to compare
Submitted by anon on Fri, 07/09/2012 - 16:45.
It is staggering to compare work place with raising children and to talk of discrimination in this context. This ignores fundamental principles of nature, the interests of children and the views of child psychologists, for example the attachment theory. The damage to children is caused primarily not by the family courts but by angry and selfish parents who ignore the interests of their children and are fixated on their own wishes, rights and equality.

The problem with the current family law system is the backlash against mothers in the recent years due to pressure on judges from organisations such as Fathers for Justice against which mothers have had no time and resources to defend themselves even in their individual cases, let alone through lobbying as they are too busy working, caring for the children and defending litigation from fathers.

I completely agree with the views of DJ Chrichton. It is plainly not in the interests of children to treat them as property. The proposed legislation focusses on the rights of parents, not the interests of children.

Not all judges are the same.
Submitted by Jacqueline Emmerson on Fri, 07/09/2012 - 17:36.
Not all judges are the same. However, some time ago one in the North East stated that my client, who was a very hands on father, should accept every other weekend and a Wednesday tea time. "After all", said the judge, "That is the industry standard" As a child of divorced parents myself I would have been devastated if a judge had done that to me.

What hope is there for fathers when they come up against judges like that? Shared care should be on the welfare checklist.

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