UK Family Law Reform

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Why are they peddling the same set of reforms for 'family justice' all over again?

All this graft, over many years, involving three departments, has never amounted to anything at all
What a leaky old department Constitutional Affairs is turning out to be. No week goes by without a news story breathlessly reporting some shiny reform to "family justice", usually accompanied by some words of wisdom from the Constitutional Affairs Minister - and deputy leadership contender - Harriet Harman.

Yesterday, it was the turn of The Guardian to report the "news" that cohabiting couples are to be given rights to make divorce-style financial claims over each other, even though this gem had already been shared with the Daily Mail and The Sunday Telegraph, and has been on the cards for ages anyway, since cohabiting couples with children now have fewer legal protections than childless gay people who have taken up civil partnerships. It also became law in Scotland last May.

A few days before, the Mirror carried a story about children gaining access to tapes of their parents' judicial attempts at mutually assured destruction. This, in turn, harks back to a piece in The Times in September, which explained that consultation would establish whether it might be a good idea to give children access to their parents' divorce papers once they have become adults.

What's amazing about this piece of news is that the consultation process only ended on 30 October, so the months of soundings must have been collated and evaluated at superhuman speed for any decisions to have been made. Quite why there should be such a rush is a mystery, since there are no plans to announce any reforms to family law in the next Queen's Speech.

Nevertheless, there is plenty more speculation floating about as to what the contents of a new family justice Bill might be. The debate over whether reform might involve judges and magistrates consulting with children as to their own preferred options is already in full swing. Harman says she is troubled by the fact that though the Children's Act ensures that the family courts always act in the best interests of the child, the child is rarely given a chance to give her view. When this does happen, it is cumbersome and expensive, with the child given a lawyer and a social worker to represent her interests in court.

Harman has already signalled too her wish to discourage parents from resorting to the family courts over contact at all. She told a parents' group in London early last month that the Government's commitment to mediation is continuing, and that it is likely that qualifying parents will be denied legal aid in marital disputes until they have tried mediation instead.

More controversially, it has been anticipated for some time now that a new family justice Bill might work out some way of introducing some sort of transparency-with-anonymity to the family courts, as, says Harman, their "secrecy" is so often lambasted as making them unaccountable that it has resulted in a loss of public confidence.

Others have less confidence in the basic soundness of the family court system. Some of those whose frustration with the workings of the family courts is at fever pitch - and this includes some of the people who toil in them - welcome the idea, mainly because they hope that scrutiny will show the system up as the farce they believe it to be.

But for others, these tentative proposals smack more of naming and shaming than of the judgement of Solomon. Clearly the threat of exposing warring parents to their children when they are older is designed to get them to think about holding their tongues a little. Less overtly, the idea that one's child might be dragged into court to give evidence in a custody battle, might give the less criminally-insane-with-hate among battling spouses a little pause for thought.

The ideas that most appeal to Harman seem to be the ones that can influence parental behaviour, rather than ones that address inherent flaws in the legal process itself. There is much to be said in favour of this approach, since it's true that no amount of legal intervention can fix a fractured family, and - observation and bitter experience tells most of us anyway - it more often than not contributes only to the escalation of hostilities.

Yet if all this sounds like stuff that's been being peddled around Westminster for years now, that's simply because it has been. The Government published a green paper called Parental Separation in 2004, which received more than 250 responses when it went out to consultation. Inexplicably, none of its proposals went anywhere at all, even though many were identical to those being floated so enthusiastically now. Likewise, the Department of Education - which was handed the job of family court reform for a while - also ran a pilot called Family Resolutions, and came up with similar conclusions, including the suggestion that "children could also be involved in the parent planning process".

All this graft, over many years, involving three departments, never ever amounted to anything at all, which is why the process of doing it all again is now rushing along so merrily. Instead, almost comically, the whole protracted search for a huge new Bill was boiled down into a strange government brochure, Parental Separation: Children's Needs and Parents' Responsibilities, Next Steps, published in January 2005. It contained some blank pages, in which people were asked to write their "parenting plan".

Basically, the long expensive process ended with a dumb little document that couldn't have done better if it had set out deliberately to satirise the basic flaw at the very centre of most family court referrals. Among family law reformers, the booklets have now become grimly ironic collectors' items.

What is the irony at the heart of all this activity then? Simply that the real trouble with the family courts is that they operate the law in a fashion unlike that of any other court. Because the family courts are obliged to treat each case on its own merits, they are obliged to operate law without precedent. Each time a set of separating parents decide that they cannot agree contact arrangements among themselves, they must refer themselves to the courts or to mediation, because all the Children's Act recommends is that there should not be no contact at all in the absence of a good reason.

No one ever tells them that, realistically, most absent parents find half the holidays, every other weekend and an evening every week can work quite well, as is the convention in Britain rather than the law. No one ever says - as they do in some US sates - that the presumption is that each parent has just as much right as the other, and that they can expect to negotiate back or forward from a presumption of a 50-50 split.

From what she is trailing, and what she is not, Harman appears unconvinced by the idea that some kind of presumption about what is an adequate time-period for contact must be introduced into the system. Reformers who understand that this omission is at the heart of the matter - even as far as encouraging parents to work out their own arrangements without recourse to courts is concerned - are left hoping that a glimpse into the workings of the family courts will be enough to make it obvious, and enough to trigger yet another round of reforms.

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