Law Must “Adapt Itself” to Modern Families
Law Must “Adapt Itself” to Modern Families
The president of the High Court’s family division has spoken weeks before his retirement to criticise the “maddeningly slow” progress of family law in the UK and recommend that the courts be updated to reflect the realities of modern family life.
In an address on modern family law, Sir James Munby said he welcomed the decline of the “nuclear family,” and highlighted that “the family takes an almost infinite variety of forms” in today’s society, including unmarried couples with children, same-sex couples, divorce, remarriage and surrogacy.
Parental orders for those seeking to become legal parents of a child born via surrogacy have increased from under 50 per year in 2008 to 300 annually a decade later.
Meanwhile, national statistics show that over 10,000 same-sex couples in the UK are currently raising dependent children.
In many lawyers’ eyes however, the justice system is lagging behind this societal progress.
Sir James underlined that the law had failed to “adapt itself” to these changes, with the result that judges are not “properly equipped for their vital problem-solving role” in familial disputes.
“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be,” the senior judge stated.
Senior judge says family courts need more say on social issues
Among the chief concerns for justice in modern family law, Sir James cited the complexity of legal process and the narrow-sightedness and technical emphasis of courts’ judgements.
Under the current law, judges are often powerless to direct the use of public funds to address the wider, social and economic issues that often underlie domestic legal actions.
As his speech highlighted, “typically, the families and children who find themselves before the courts are the victims of multiple difficulties and deprivations: economic, social, educational, employment, housing and health.”
Yet as was underlined in A. v Liverpool City Council, under the “non-intervention” principle, the courts are unable to “intervene on the merits in an area of concern entrusted by Parliament to another public authority.”
The senior family court judge termed this limitation “the most pressing problem of all.”
The restriction means that judges have little say in the handling of deeper social and economic issues evidenced in cases, so that, in Sir James’s words: “a court changed with the duty of furthering the child’s welfare is denied the necessary tools to do so.”
The senior jurist called for a closer partnership between the courts and government policy-makers in the treatment of these issues, rendering the family courts a “one stop shop” for resolution of individuals’ difficulties.
Judiciary aims to increase transparency in family court hearings
The outdated complexity of legal process and rules in many cases makes matters worse, needlessly creating “delay, added cost and worst of all, additional stress for all concerned.”
The family court president is among a number of senior legal professionals to recently suggest that more openness is needed in the family courts, to ensure that judges are transparent and accountable in their decisions and process is rendered as simple as possible.
The recently appointed Lord Chief Justice, Lord Burnett of Maldon, has also stated that increasing the courts’ transparency will be one of his top priorities as head of the judiciary.
At present, family court hearings are usually heard in private.
Whilst accredited journalists are allowed access in all but exceptional cases, any reporting is subject to strict rules on publishable details, and access to court documents is limited.
Sir James Munby has argued that such secrecy threatens “legitimate [public] interest” and weakens the accountability of judges, who now more than ever, are “grotesquely overworked” and may be prone to making errors.
Lawmakers have begun to make efforts towards opening up the courts in recent years, with a 2017 pilot scheme seeing the sentencing remarks of judges filmed and broadcast for public consumption.
Section 41 of the Criminal Justice Act 1921 currently prohibits filming in court in most cases.
However, advocates say that greater judicial transparency would allow journalists and the public to scrutinise judges’ decisions, both holding the judiciary to account and improving public understanding of the courts’ process.
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