Family Justice – The Work of Family Judges in Uncertain Times, John Eekelaar and Mavis Maclean, Hart Publishing 2013.
I anticipated that this book would be a dry old read but in fact it was (to me at least) really rather interesting, and gave me some helpful ways of understanding and articulating the judicial process and the nature of the family justice system in this jurisdiction – both its strengths and it’s weaknesses.
It is easy to say “but that’s madness” in response to the latest cut or hairbrained reform proposal. It is harder to say why, to articulate the delicate balance and the hows and whys of our arrival at the present imperfect but nonetheless sophisticated system. I will find it a little easier now I have this book under my belt.
I’ve been in the field for a decade or so which makes me a child of the Children Act generation – I know of but did not experience the dark days before its inception. For those who want a longer view than their own first hand experience provides this book is useful. And for me it reinforced some of the instinctive rebuttals I often issue to critics of the system – it gives an evidential underpinning to the arguments based on logic and experience. It is easy (and right) to criticise the weaknesses of a system that does not effectively enforce its orders – but I’ve yet to find a critic that has a better solution that does not create its own problems. The “enforcement paradox” for example is no doubt a concept not new to this publication, but it was for me a new way of articulating a well understood phenomenon for which I am grateful.
So. This book conducts something of a comparison between our approach in this jurisdiction and in others, for example Australia. It looks at the Family Justice Review and subsequent reforms, proposed and enacted. It worries openly about the direction of travel and the future, frets about the characterisation as all time spent as “delay”, busts a few myths about the efficacy of mediation and PIPs as a panacea, and reminds us of the multi-layered role that family judges actually perform – in private law at least far more dispute resolution, solution finding than decision making.
It really is an excellent and thought provoking read, essential for anyone who wants to discuss current reforms in their proper context.
Thanks for the head’s up on the title. I for one do not envy Family Court Judges. I imagine it is mostly a thankless task, with no one party leaving particularly happy, and the burden that every decision made can have an incredible impact upon young lives. Yes, a lonely job if ever there was.
I have to take friendly issue with you when you describe ‘not experiencing the dark days’ pre 1989 Act.
Were they so very dark ? I suggest they were far from that. A father (or mother for that)could get an ‘ex parte’ judgemnt to protect their child from abuse.
What do we have now ?
No such guardianship orders for parents and children as a reslt left at the mercy of lazy councils and reckess mothers with their new boyfriends.
What we have also lost as a result of the 1989 Act is ‘shared residence’ and the elimination of father custody.
Go back to the 1970s and you will find some circuits awarding up to 40% of custody awards as joint or shared reseicnce (yes, Law Commissions own numbers). No wonder fathers are ‘mad as hell’ at being treated this way.
My use of the term “dark days” was intended to be mildly tongue in cheek – perhaps I should have put it in inverted commas.
I don’t think I recognise your description of today (from my own experience) or of then (from the book and other sources).
Alex: it is said that when Mackay of Clashfern asked a certain silk to go to the FD bench the answer was “You must be joking, Jimmy – fifteen years of anal dilation and a pension”.
The second half of the deal might appear more attractive now . . .
Then I can only say it is a pity it does not address many of the problems, but the author may consider this to radical
a) many judges are not suited to be sitting in the Family Court being hostile to the families and particularly mothers.
b) they ignore evidence particularly when it conflicts with their views and fail to mention defence evidence in their judgements. They frequently make legal mistakes in order to accommodate the LA and Guardian.
c) If evidence is then clearly presented they then have to back down and “unwinnable” cases are suddenly seen in a different light.
After thirteen (or was it fifteen?) hearings over a three year period, I can certainly vouch for the courts enthusiasm for dispute resolution and solution finding rather than simply making evidence-based decisions.
Perhaps the judges fear the secret evidence they must bring to adjudicate a case – their own wonderfully-wide discretion; the unknown personal attitudes and beliefs they must inevitably fall back on – in the absence of statutory guidance or proper child development guidance – and which is never open for a litigant to challenge or question. One isn’t allowed to question a judge. Plus of course we have an act of parliament which thinks it’s ok for someone to be a “contact” parent.
It doesn’t surprise me the authors worry about the direction of travel in family law. Very soon too, we’ll have an explicit safety clause, code for further repressing the ambitions of fathers to care for their children.
I wouldn’t think that any self-respecting author could write a book on family law without exposing the incompetence, discrimination and injustice to the point of risking a life sentence in prison. Anything short of that is just a waste of paper, or worse, dishonesty through omission (I think that’s the legal term).
Well, you can criticise the system and hypothesise about how things should be, or you can try and help actual people to navigate it. There are plenty of groups doing the former, but it ain’t the task of a handbook.