lowe types and styles of family proceedings in england and wales

8/6/2019 Lowe Types and Styles of Family Proceedings in England and Wales

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stipendiary magistrates]. All lay magistrates courts have theservices of a Justices Clerk, who is a trained lawyer1 and whosefunction, inter alia, is to advise the bench on matters of law.2

In general, appeals from magistrates courts lie to the HighCourt3 and from both the county court and the High Court to theCourt of Appeal. A final appeal from the Court of Appeal lies tothe House of Lords.4

2. The Judiciary

All professional judges are appointed by the Queen on therecommendation of the Prime Minister on the advice of the LordChancellor.5 All appointees have extensive experience as legaladvocates.6 In the past judicial appointments in the SupremeCourt7 were confined to barristers but since the Court and LegalServices Act 1990 appointments are also open to solicitors, thecommon requirement now being a 10 year High Court

qualification.8 In all cases, however, full-time judicialappointments will normally only be made after satisfactoryservice as a part-time judge.9 In short, all full-time judges arehighly experienced lawyers. Most will be aged between 45 and70.10 Most are men.11

Appointments of magistrates are made in the name of theQueen by the Lord Chancellor after consultation with local

advisory committees.12 So far as the lay magistracy13 is concernedno formal qualifications are required save that the personconcerned should reside in or within 15 miles of the commissionarea for which he or she will be appointed.14 Employers arerequired to release their employees for such time as isreasonable to permit them to serve as magistrates.15 Laymagistrates do not get paid for the performance of their legalduties although they are entitled to claim expenses for travel

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and subsistence and for loss of earnings in the exercise of theiroffice.16 Appointments are normally for six year terms.17 Theeffective retirement age is 70.18

Although magistrates courts committees have long had toprovide courses of instruction for justices in their area,19 trainingfor professional judges is a more recent requirement.20 All judicialtraining is now the responsibility of the Judicial Studies Board,which was first established in 1979,21 and re-established in 1985.It now has responsibility inter alia for the provision of training inthe family jurisdictions as overseen by a Civil and FamilyCommittee and, in the case of magistrates, by a Magisterial

Committee. 22 The essential philosophy of the Board is to providetraining for judges by judges23 though as a matter of fact theBoard includes leading academics and other professionals, aswell as judicial membership albeit that the latter predominate. Inthe family law field the Board now provides induction courses forall new deputy district judges and refresher seminars forestablished circuit judges. It was also responsible for extensivetraining on the Children Act 1989 and, more recently, on theHuman Rights Act 1998.24

3. Advocates25

In England and Wales there is what is commonly referred to as adivided profession comprising barristers and solicitors. Clientsseeking legal advice and redress are required to approach asolicitor who in turn may engage or brief a barrister either toprovide an opinion and/or to act for the client in court. Where abarrister is so briefed it will be he or she who will exclusively actas the advocate in court. However, barristers no longer haveexclusive rights of audience in the higher courts and solicitorscan therefore act as an advocate.26 In practice, solicitors tend toact as advocates, if at all, in the lower courts, particularly in themagistrates court.

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is a party, a judge will rarely personally examine the child eitherin court or privately.

3. Sources of law

As in all common law jurisdictions there are two primary sourcesof substantive law, namely, statute (as augmented by secondarylegislation, that is, Rules and Regulations) [note there are noCodes in English law] and common law, that is, lawwhich solelyderives from judicial decisions. For the most part

family law is now statutory based but there are still some areas,for example, the concept of legitimacy and the wardship orinherent jurisdiction in the High Court, that remain based incommon law.

Unlike civil law systems, case-law both in the form ofinterpretation of statutes (the vast majority of case-law) or thedevelopment of the common law, plays a hugely important role

in English family law. The doctrine of precedent viz that Houseof Lords decisions are binding on all lower courts, Court ofAppeal decisions bind both themselves and all lower courts andHigh Court decisions bind lower courts, applies in family lawmatters as in all other cases.

2. JUSTICE BY TRIAL IN THE COURTS

# 1. JURISDICTION AND ORGANISATION OF THE COURTS

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1. Some Background Information

Unless specifically prescribed, parties are free to choose inwhich court to make an application. Accordingly, actions forprotection against domestic violence,30 free standing private lawapplications concerning children31 and adoption applications32 canbe brought at any level of first instance court. However, alldivorce petitions must be brought in the county court33 andconsequently all the ancillary issues relating to children,property (including the matrimonial home) and money are alsodealt with there. In any event, magistrates have no jurisdictionover property nor to make declaratory orders as to the parents

and childrens status, so applications must be made for the twohigher courts.34 In certain areas, such as international childabduction, jurisdiction is confined to the High Court.35

The 2001 Judicial Statistics 36 (the latest available) gives someidea of the relative workload of the different court levels. Forexample, of 112,012 private law applications for orders relatingto children, 25,411 (23%) were made to the magistrates courts,

86,269 (77%) were to county courts and 332 (>1%) to the HighCourt. A not dissimilar proportional workload can be seen inadoption with 1,598 (31%) applications being made tomagistrates courts, 3,298 (66%) being made to the countycourt and 111 (2%) being made to the High Court. The vastmajority of domestic violence applications, 27,810 (98%), aremade to the county court, with magistrates courts only receiving372 (1%) and the High Court 100 (>1%) applications. In additionto these applications county courts handled virtually all of the

161,580 divorce petitions including any applications for ancillaryrelief making 10,858 maintenance orders in respect of children,26,627 lump sum and property orders for spouses and 10,295orders for spousal maintenance.

From this summary, it can be seen that the major workload ofprivate family law cases is handled by county courts, though

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with magistrates courts dealing with a significant minority ofcases concerning children and the High Court handling relativelyfew mainly difficult or significant cases relating to all types offamily disputes.

(b) The Specific Questions

Is Jurisdiction given to the ordinary or to special courts(e.g. family courts having full or limited jurisdiction)?

Are there special divisions within the ordinary courts(e.g. family divisions)?

Are there specialist judges sitting in ordinary or specialcourts (e.g. matrimonial or family judges, youth judges)?

The short answer to these three questions is that family lawdisputes in England and Wales are now dealt with by what mayfairly be described as a family court system comprisingspecialist family court divisions or centres at all levels of original

jurisdiction.37 How this is achieved varies from court level to courtlevel with specialism being especially pronounced when dealingwith children.

In the High Court, family law disputes are handled by the FamilyDivision which was first created by the Administration of JusticeAct 1970, s 1. Before that Act, family law work was dividedbetween the old Probate, Divorce and Admiralty Division, whichhad exclusive jurisdiction over divorce, and the ChanceryDivision, which had a general supervisory jurisdiction over

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children. The current jurisdiction is set out in Schedule 1 to theSupreme Court Act 1981 and broadly covers all types of familylaw disputes.

Judges sitting in the Family Division (which is headed by aPresident, currently Dame Elizabeth Butler-Sloss, and comprisesa total of 18 judges [including the President] 4 of which arewomen),38 are mainly, but not exclusively, drawn from thespecialist Family Law Bar and spend a substantial part of their

judicial time sitting in family law cases. They are immenselyexperienced in dealing with family disputes.

At the county court most family cases are heard by what areeffectively specialist divisions. All matrimonial causes (that is,actions for divorce, nullity of marriage and separation, togetherwith actions for ancillary relief of maintenance, property divisionand children) must be commenced in a divorce county court (i.e.a county court specially designated for this purpose) or in thePrincipal Registry in London (which is a divorce county court forthis purpose).39 Of more recent creation, that is, to coincide with

the implementation of the Children Act 1989 in October 1991,are the family hearing centres and care centres.40 The former arecompetent to hear private law applications concerning childrenunder Parts I and II of the Children Act 1989. These centres arenot competent, however, to hear public law cases, whichapplications have to be heard by the care centres. However,care centres and, in London, the Principal Registry of the FamilyDivision (which for these purposes is both a family hearing and acare centre) have full jurisdiction in both private and public law

cases. Only designated family judges and nominated carejudges, that is, circuit judges specified by the Lord Chancellorwho have undertaken specialist training, have jurisdiction tohear cases at these centres. The thinking behind thisdevelopment is that the concentration of family work in thecentres ensures that specialist judges can be effectivelyemployed to deal with cases expeditiously and that continuoushearings can be assured, thus avoiding the need for lengthy

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adjournments.41 Most recently, that is with effect from October2001, a new class of county court has been created, namely,adoption centres,42 which, as the name implies, deal exclusivelywith adoptions. The overall aim of the centre is to reduce delay

and inefficiency in adoption court proceedings. Despite thesecentres specialisation is not complete, since non designatedcourts have jurisdiction to hear domestic violence proceedingseven when these involve children.

Like county courts, magistrates courts were reorganised at thetime of the Children Act 1989 with the creation of familyproceedings courts.43 These are staffed by magistrates drawn

from the family panel.44 They have sole jurisdiction to hearfamily proceedings.45 Membership of the Panel requiresinduction training and a course of basic training after a justicehas commenced sitting. Magistrates are subject to appraisal inaccordance with the Magistrates National Training Initiative.

Those chairing courts are required to undertake additionaltraining. The general training aims inter alia to inculcateknowledge of the Children Act 1989 and its philosophy, whilstChairmanship training must also equip justices to be moreproductive in conducting court hearings and to be able toarticulate reasons for their decisions.46

Is the public prosecutor present or absent?

There is no such office under English law.

Are there auxiliary services (i.e. the social services,counsellors, legal aid bodies, conciliation and mediationservices, etc) present?

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Although none of the above mentioned services are present incourt, such services are nevertheless available in many cases.Legal aid, for example, is administered by a body now known asthe Legal Services Commission.47 In family cases, parties apply

for funding usually with the help of their solicitor and beforecourt proceedings are initiated. Funding is available in all typesof family proceedings but it is subject to both a merits and ameans test.48 Although in family cases, particularly thoseinvolving children, it is relatively easy to satisfy the merits test,the income and capital limits are relatively low.49 Only thepoorest qualify for funding without having to make anycontributions.

So far as social services are concerned the court can, in privatelaw children cases brought under the Children Act 1989, ask alocal authority to prepare a report on the child.50 Where the courtcalls for such a report it can ask a local authority to arrange forit to be done either by one of their officers or such other person(other than a probation officer) as the authority considersappropriate.51 There is also power under s 37 of the 1989 Act incases where it appears to the court that it may be appropriate tomake a care or supervision order, to direct the local authority toinvestigate the childs circumstances. There is, however, nopower in private law proceedings to make a public law order, norcan the court directa local authority to institute public lawproceedings.

There is no formal in-court conciliation or mediation officers but,as will be seen below, the courts can play a vital mediation role

both in divorce settlements and in relation to children.

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Is jurisdiction dispersed according to the nature of thedisputes or to the time at which they arise (e.g. before,

during or after divorce proceedings)? Or is there afunctional pooling of jurisdiction, and if not, what are theobstacles to such a pooling?

Like so much of English law, jurisdiction has developedunsystematically and often by historical accident rather than bydesign. Perhaps, the exception to this has been the revision of

jurisdiction following implementation of the Children Act 1989

under which a more coherent scheme has been developed.However, the short answer to the question is that it is the natureof the dispute that mainly determines jurisdiction rather thantiming.

To illustrate the above comments it is instructive to considerjurisdiction to hear divorce cases. When divorce was firstintroduced by the 1857 Matrimonial Causes Act it was

considered to be such a serious issue that only the High Courtcould deal with it. This remained the case until the MatrimonialCauses Act 1967, which extended jurisdiction to county courts(at any rate those designated to do so) to hear any undefendedmatrimonial cause. The county court jurisdiction was laterextended by the Matrimonial and Family Proceedings Act 1984, s33 to hear all matrimonial causes and indeed all suchcauses mustnow be commenced in a county court. In otherwords in just under 20 years the High Court lost exclusive

jurisdiction to hear divorce and now only hears cases transferredto them,52 which is rare.

English law is committed to the view that the court hearing amatrimonial cause (i.e. divorce, nullity or separation) should alsohave jurisdiction to hear ancillary matters concerning theparties property, money and children.53 Accordingly, the vast

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majority of private law family disputes are handled at the countycourt level,54though any aspect of the case can be transferred tothe High Court if thought warranted.55

Of course, not all private law disputes are in the context of adivorce. Disputes may arise between those who had cohabitedrather than married or may be between parents or spouses andthird parties. Disputes over property cannot be brought in themagistrates court, that has always been felt to be too importantto leave to the lowest court. Most such disputes are brought inthe county court, but the High Court also has jurisdiction.56

So far as children are concerned, outside the context of divorce,private law disputes under the Children Act 1989 or applicationsto adopt can for the most part be brought at any level of firstinstance court. There is, however, an important safety net toallow the transfer of cases from one level toanother.57 Notwithstanding this relative freedom, it is establishedthat certain types of cases, for example, applications by childrenfor leave to apply for s 8 orders,58 applications to sterilise a

child59and those involving possible breaches of InternationalConventions dealing with Child Abduction or Custody60 should bebrought in the High Court. There are, in any event, certainmatters exclusively reserved to the High Court, for example,hearing applications under the 1980 Hague Convention onInternational Child Abduction61and hearing wardship applications.

Where there is a free choice, litigants generally choose thecounty court62 since it is less expensive than the High Court yetmore professional than magistrates courts. The High Court,quite rightly, tends to be used for difficult or complex cases orthose involving important issues of law. It also tends to be usedin cases involving a foreign element.

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Are the relevant courts far or remote from the citizens?

Since England and Wales is a relatively small country, in onesense no court is geographically very remote from citizens.Generally speaking, however, the lower the court the more localit is.

Although the High Court is physically located in London, judgesof the Family Division are all liable to go on circuit.63 Furthermore,additional judges are available to go out on circuit at short

notice to hear cases requiring Family Division judges. In theresult for at least some period of each year a major centre ofpopulation is likely to be visited by a Family Division judge.Furthermore, considerable judicial work at the High Court level iseither undertaken by circuit judges sitting as High Court judgesunder s 9(1) of the Supreme Court Act 1991 or by deputy HighCourt judges appointed under s 91(4) of the 1991 Act.

Despite the above arrangements cases in urgent need to beheard by a Family Division judge,64 will mean that the parties willhave to travel, if not to London, then to some other major centrewhere such a judge is available.65

County courts are numerous and geographically spread acrossthe country. In total there are some 240 such courts overallstaffed by 539 Circuit Judges and 337 District Judges.66 However,

as has been said, by no means all of these courts havejurisdiction to hear all types of family proceedings.Approximately 176 are divorce county courts, 114 are familyhearing centres and 56 are care centres with a similar number ofadoption centres. Overall, however, no citizen should be morethan an hours drive from an appropriate county court.67

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Magistrates courts are the most numerous of all courts. Thereare about 600 such courts with over 30,000 justices being on theactive list. By no means all such courts are designated familyproceedings courts, and justices on the active family panel list

are less than half the overall list.

# 2. OPERATION AND PROCEDURE

Is the role of the judge active or passive in theproceedings, seeking evidence, enforcement ofdecisions? Does the judge play a conciliatory role?

By English standards family law proceedings, particularly thoseinvolving children, are markedly less adversarial than othertypes of proceedings. Indeed, the former President of the FamilyDivision, Sir Stephen Brown once commented:68

The proceedings under the Children Act are notadversarial, although an adversarial approach is frequentlyadopted by various of the parties. However, so far as thecourt is concerned, its duty is to investigate and to seek toachieve a result which is in the interests of the welfare ofthe child.

However, in Re L (Police Investigation: Privilege)69 Lord Nicholls,having acknowledged the great importance of the special role of

judge in family proceedings and the desirability of avoidingconfrontation and conflict in such proceedings, cautionedagainst simple labelling, pointing out that family proceedingspossess some adversarial features and some inquisitorial

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features. In any event, by civil law standards, proceedings wouldno doubt still appear markedly adversarial. That said, however,family courts, particularly in proceedings under the Children Act,are expected to play an active part in the proceedings and not

merely to act as umpires between the parties.70 Under that Actthe court must control their proceedings by setting timetables,giving directions about the assessment of the child, theappointment of experts and the filing of witnessstatements.71 They can also make orders in proceedings thatneither party has specifically sought.72

Although these developments under the Children Act 1989

marked a significant departure from previous practice73 andindeed has since led to the important introduction of the so-called Financial Dispute Resolution for resolving financial reliefclaims after divorce (discussed further below), in many ways theconduct of a case is still left to be parties and their advisers. Theparties are responsible for the gathering and presentation ofevidence. Beyond asking for reports on children the courts haveno separate powers to gather evidence. The parties areresponsible for the conduct of the case and, subject to thecourts control over the appointment of experts in children cases(see below), can decide which witnesses, if any, to call.However, this freedom to conduct the case is circumscribed byimportant rules relating to so-called discovery documentsdesigned to prevent one side ambushing the other. Under thisprocedure parties are expected to list and disclose to the otherrelevant documents proposed to be put before the court.74

Enforcement of decisions are normally the subject of separateproceedings but when initially making orders, particularly ifenforcement is likely to be an issue, the court should be carefulto make clear and potentially enforceable decisions (see below).

Apart from the Financial Dispute Resolution procedure, thewhole point of which is to facilitate agreement between the

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parties, judges have no formal conciliatory role but wouldgenerally be expected to conduct the case so as to avoidunnecessary conflict.

What is the part played by public prosecutor?

There is no such office in English law.

What is the role of the parties or of theirrepresentatives?

As previously explained, notwithstanding a greater managerialrole placed in the court, the parties and their advisers still play akey role in proceedings. They essentially control how the caseshould be presented, what orders should be sought and whatevidence to bring in (and leave out). All parties to proceedings

are permitted to present their case both by written statementand usually by oral evidence and are generally entitled to cross-examine another partys witnesses. These powers are subject, atany rate in Children Act proceedings, to the overall control of thecourt either to limit oral evidence or to dispense with italtogether.75 In practice a substantial hearing will be preceded bya directions hearing which is designed to enable a case to bewell managed by determining what issues are agreed and whatare not and anticipating any difficulties that may arise.76

Although the number of litigants appearing in person (i.e.without legal representation) seems to be growing, for the mostpart, parties will be legally represented and it will be the lawyerwho will present the case in court. Although the recent trend infamily cases has been to place greater emphasis on written

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submissions, oral arguments remain important and in thisregard is quite different to civil legal systems.

What is the role of expert witnesses in particular thosein the medical/psychological sphere?

Expert witnesses are brought in at the parties request but inChildren Act cases, court leave is required.77 In determining leavethe court has a proactive role in that it has a duty to decide inwhat areas expert evidence is required and to limit expert

evidence to given categories of expertise and to specify thenumber of experts to be called.78

The role of the expert is to give independent assistance to thecourt by way of objective unbiased opinion. It has beenemphasised79 that experts should only express opinions whichthey generally hold and which are not biased in favour of oneparty. In children cases experts have been encouraged to hold

discussions with other experts instructed in the same field and,where they can, provide an agreed report or else set out inwriting the areas of disagreement and give their opinions on thefacts. In ancillary relief proceedings parties should, whereverpossible, agree upon and instruct a single expert.80

The opinion of an expert, however eminent, is not in itselfdeterminative, since ultimately any findings are a matter for the

court.81

What is the role of the auxiliary services and the legalaid bodies?

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See above at # 1.

Procedural rules: are they a matter of public policy?Formal or simplified?

Although all courts are in control of their own proceedings andtherefore have some individual discretion as to the conduct ofindividual cases, this is subject to quite detailed formallypublished procedural rules and practice directions which judgesat all levels are expected to follow. So far as the High Court and

county court is concerned the most important of these rules isthe Family Proceedings Rules 1991 which apply to all types offamily matters.82 The magistrates courts are governed by theFamily Proceedings Courts (Children Act 1989) Rules 1991 inmatters concerning children and the Family Proceedings Courts(Matrimonial Proceedings Etc) Rules 1991, in matters concerningdomestic violence and maintenance. There are separate rulesgoverning adoption, namely, the Adoption Rules 1984 applicable to the High Court and county court and theMagistrates Courts (Adoption) Rules 1984 - applicable to

magistrates courts.

These rules are supplemented by numerous Practice Directionswhich are issued by the Lord Chancellor or, in the context offamily law, by the President of the Family Division. They cover avariety of subjects and may deal with one specific issue, forexample, that applications by children for leave to seek s 8orders under the Children Act should be made to the HighCourt,83 or a whole area, such as the new approach toadoption.84 They can also deal with quite basic issues such as thecitation of authorities and the bundling of evidence, and timeestimates of court cases.85

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Are there emergency proceedings and emergencyremedies?

The short answer to this is yes. In domestic violence cases, forexample, applications for non molestation and occupation orderscan be made quickly and, initially, on one partys application(proceedings where only the applicant is present are known asex parte proceedings). Emergency steps can be taken toprevent a childs abduction out of the country and ex parteapplications are permitted for private law orders under theChildren Act. Interim relief for periodic payments of maintenancecan be sought before the main hearing of post divorce ancillary

relief application.86

Authority of and enforceable nature of court decisions are they open to review, appeal or other means ofredress?

Prima facie all courts, including those made in family matters(regardless of the level of the court that made the order) areultimately enforceable (see below). They therefore should beobeyed unless and until they have been varied or successfullychallenged.

Many court orders in respect of family issues can be varied inparticular orders determining who should look after the child,

who should have contact, periodic payment orders betweenspouses and for their children87 and orders such as nonmolestation and occupation orders. Orders that cannot be variedare those formally changing status, such as divorce, nullity,formal declarations of parentage, legitimacy and adoption, andlump sum and clean break orders after divorce.

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With rare exceptions,88 orders made in respect of family matterscan be appealed. As previously explained, appeals frommagistrates courts lie to the High Court and from the countycourt and High Court to the Court of Appeal and from there to

the House of Lords. Appeals from magistrates courts are notgenerally subject to any special restrictions89 but, save in certainstrictly defined circumstances, permission is required to appealto the Court of Appeal90 and even more restricted criteria need tobe satisfied to appeal to the House of Lords.91

Even where there are no specified restrictions, appeals are notthat common partly because parties and their advisers can be

penalised in costs if an appeal is thought to be hopeless.92 Theappellate courts function is to determine whether the courtbelow fell into legal or factual error. It cannot, therefore, simplysubstitute its own view.93 Fresh evidence is generally onlyadmitted where it relates to some significant even that hasoccurred since the original hearing.94 In other words appeals arenot hearings do novo.

Enforcement measures and penalties

In general terms all court orders95 are enforceable anddisobedience is punishable as a civil contempt of court. 96 In thisrespect family matters are no different, though particularly inchildren cases there is an understandable reluctance to punishoffenders by imprisoning (or committing) them. As one judgeonce commented97Committal orders are remedies of the lastresort; in family cases they should be the very last.

Save for the length of imprisonment (which must be for a fixedperiod of no longer than two years)98 the higher courts contemptpowers are at large and sanctions can include fines andsequestration (by which the parties financial assets are frozen)

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as well as imprisonment. Magistrates powers are governed bystatute99 and comprise a maximum fine of 5,000 and/or twomonths imprisonment.

There are stringent safeguards to protect individuals which mustbe strictly complied with before a contempt sanction may beimposed100 but in an important ruling, inA v N (Committal: Refusalof Contact),101 it was held that in considering whether to commit amother for her persistent and flagrant breach of a contact orderwith the father, the childs welfare was a material but nottheparamount consideration, and she was committed for 42 days.

The contempt sanction is the most serious one available fordisobedience, and ought only to be used when other sanctionshave failed. They are probably most often imposed in domesticviolence cases. Lesser, but nonetheless useful sanctions includethe power under s 34 of the Family Law Act 1986 in cases wherea person is required to give up a child to another person, toauthorise an officer of the court or a constable to take charge ofthe child and to deliver him to that other person.

In the context of maintenance orders, enforcement can be bydistress (i.e. distraining goods and selling them to raise themoney to pay the arrears), committal and by making anattachment of earning order which directs the employer todeduct sums out of their employees wages/salary.102

Evaluative Assessment

Overall, the English family justice system has benefitedenormously by the substantial modernisation of its procedure,particularly since the Children Act 1989. In the result there is a

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generally fair and flexible procedure with every incentive (seefurther in # 3) for the parties to settle amicably. There are,however, two key problems, namely delay and costs.Notwithstanding, the timetabling provisions introduced into

childrens cases under the Children Act 1989, there continues tobe lengthy delays. There are many causes103 but this is certainlyone area where the 1989 Act can be said to have failed.104 Costsof English litigation are high much higher than in continentalEuropean systems. A striking example was given in a recentdecision105 concerning the application of the Brussels II Regulationin which the wifes costs in the English proceedings were said tobe 153,000 and the husbands 108,000 which compared withcosts respectively of 11,000 and 2,600 in the Germanproceedings. As Thorpe LJ commented The inevitablecomparison should give specialist practitioners in London pausefor thought.106

# 3. NEGOTIATED JUSTICE AND ALTERNATIVE CONFLICTRESOLUTION TECHNIQUES

1. General Background107

Notwithstanding its adversarial character (or indeed because ofit) mediation (or as it used to be called conciliation) has been afeature of the English family justice system since the early1970s.108 It was prompted in part by the new divorce law which

came into force in 1971 and which ended the argument thatdiscussions as to how to resolve finance could bar the divorce onthe grounds of collusion. It was encouraged in the Finer Reportof 1974109 and in 1977 the Bristol County Court introduced aconciliation appointment which was followed in 1978 by thecreation in Bristol of the first out of court conciliation service.More services both in and out of court created and an umbrellabody, the National Conciliation Council, was formed.

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In 1982 the Solicitors Family Law Association was formed and itadopted a Code of Practice which embraced a conciliatory

approach to be employed by family law solicitors. In 1983 an in-court conciliation scheme for dealing with disputed childrencases began at the Principal Registry of the Family Division inLondon.110

In short, by the 1980s there was a well developed interest inmediation which in turn reflected a change of attitude towardsdivorce and a shift of emphasis from the fact of its dissolution to

its financial consequences and especially its effect on thechildren of the marriage.

Further developments took place in the 1990s, for example, in1996 a pilot scheme for dealing with disputed cases of financialand property issues in divorce111 was introduced in various partsof the country under the auspices of the Lord ChancellorsAdvisory Group on Ancillary Relief and supported by the

Solicitors Family Law Association and Family Bar Association.

Mediation was going to be at the heart of the new divorce law tohave been brought in by the Family Law Act 1996 and indeedthat Act does contain112 the first statutory basis of the use ofmediation in the resolution of family law disputes in England andWales. Although the Government have now abandoned plans toimplement the divorce provisions in the 1996 Act,113 the principle

of using mediation as a primary means of conflict resolution hassurvived.114

The Judicial Studies Board, which, as we have seen, isresponsible for judicial training, has organised a series ofseminars both about mediation and other forms of Alternative

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Dispute Resolution and, since November 2001, has ensured thatdistrict judges are specifically trained about the purpose ofmediation. Meanwhile under the new Law Societys Family LawProtocol, issued in 2002, solicitors are required, unless it is

clearly inappropriate to do so, to explain the mediation processand to advise on its benefits for clients.115 Furthermore, thesuitability of mediation must be kept under review throughoutthe case.

2. The Current Position

Because of constraints of space, discussion will be confined tothree areas, namely, mediation and legal aid, mediation andchildren cases before the Principal Registry and the FinancialDispute Resolution hearing.

i. Mediation and legal aid

Family mediation is funded by the State as part of what is nowcalled the Community Legal Service under the Access to JusticeAct 1999 and the Funding Code. It has been placed at theforefront of resolving family disputes and, at any rate in publiclyfunded cases, by requiring,116 save in exceptional cases,117 thosewho want to apply for what is now termed legalrepresentation,118 to attend an assessment meeting with amediator. There is also a financial inducement to seek mediation

inasmuch as neither family mediator nor assistance from asolicitor under the Help with Mediation service attractcontributions from those eligible for public funding. Furthermore,the financial criteria for eligibility have been widened, so that atcurrent rates, a client with disposable income of up to 695 permonth will be able to obtain mediation free of anycharges.119 Moreover there are no penalties if these mediation

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attempts fail. In other words there is every incentive to seekmediation.

Since April 2001 the availability of public funded mediation,coupled with the requirement to seek it, applies to the majorityof private law family disputes and applies equally to disputesbetween married couples and unmarried couples where theyqualify financially and the dispute arises out of their familyrelationship,120 and also extends to family disputes withgrandparents. Solicitors are required to report to the RegionalDirector if his legally aided client declines an offer to mediateany issue in the proceedings.121

Notwithstanding the above scheme mediation remains avoluntary process which will only work ifboth parties are willingto attend. The mediator cannot give legal advice but can provideinformation on an even handed basis so to help the partiesthemselves on an informed basis. Mediation is normallyconfidential. The only exception is where statements are madeduring the process which indicate that a party has either in the

past caused or might in the future cause serious harm to a childor anyone else involved in the mediation.122

ii. Mediation in children cases before the Principal Registry

Although first pioneered by Bristol County Court, there has longbeen a scheme, in fact since 1983,123 for conciliation/mediation fordealing with contested children cases in the Principal

Registry.124 Basically, the scheme operates as follows: The DistrictJudge may at any time when considering what arrangementsshould be made for children involved in divorce proceedingsand, where an application is made for a residence or contactorder, refer the matter for a conciliation appointment.125 Theappointment takes place before a district judge and is attendedby a CAFCASS officer. Not only must the parties and theiradvisers attend the appointment but also any child aged 9 or

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over who is living with either party and whose future is indispute. The parties or their advisers will outline the nature ofthe application and the matters are in dispute. If the disputecontinues, the parties are given the opportunity of retiring to a

private room together with a CAFCASS officer (i.e. a Childrenand Family Reporter), to attempt to reach an agreement. As the1992 Practice Direction states If the conciliation is successful,the district judge will make such orders, if any, as may beappropriate. If unsuccessful, the district judge will givedirections (including time-tabling) with a view to the earlyhearing and disposal of the application. Neither the Judge northe CAFCASS officer in the conciliation/mediation appointmentcan be involved in the subsequent proceedings.126

Proceedings at a conciliation appointment are generallyprivileged and cannot be disclosed in subsequent contestedproceedings before the court.127

Although there are variations, this model is essentially followedin courts around the country. In 1992/3 the court welfare service

completed some 19,280 conciliation.128

iii. Financial Dispute Resolution Hearings (FDR)129

Initially inspired by the developments in the children field andbuilding on the success of the Lord Chancellors Ancillary ReliefPilot Scheme,130 there is now (that is from July 2000) a nationwidescheme known as Final Dispute Resolution (FDR) designed tofacilitate agreements upon financial relief ancillary to divorceproceedings. An FDR hearing, which appointment should beordered in every case save where it is not appropriate, in thecircumstances,131 provides the parties and their advisers with an

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early, short and informal hearing at which the parties areencouraged to reach a negotiated settlement by the activeintervention of a judge. Both parties and their advisers arerequired to attend the hearing in person. The hearing usually

lasts one or two hours, although out of court negotiations willtake rather longer in most cases. The judge will have read thecase papers in advance and will hear and read a summary of theparties respective arguments and of their position in thenegotiation. He will then give a summary forecast of what in hisopinion would be the likely outcome if the case were to proceedto trial. If, on the basis of this forecast, the parties reachagreement, an order by consent132 can be made at the end of theFDR hearing thereby ending the litigation. If no agreement isreached the case is set down for future trial, though the partieswill have been warned about the costs implications of this move.

The judge who hears the FDR appointment cannot then beinvolved in the contested formal hearing.

Although preparation costs for FDRs are heavy, in most casesthey are only half or less than half those of a full trial. Moreover,a successful ADR saves between 3 and 6 months of furtherproceedings in most cases.

ADR hearings are informal in the sense that there is noprescribed format and judicial intervention varies with the judge.According to one experienced counsel133between as many as 80-90% of cases settle at or shortly after an FDR hearing.Furthermore, as a result of such hearings, in his view, lawyersare becoming better negotiators and are seeing more closely

and more frequently the benefits of successful negotiations as afacet of litigation rather than abdication. To that extent theskills-base of the family law practitioner is widening and at thesame time, the ethos of the family law advocate is developingever more firmly in the direction of avoiding needlesslyaggressive combat.

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# 4. THE CHILD AND FAMILY DISPUTE SETTLEMENT

The UK is a State Party to the UN Convention on the Rights ofthe Child 1989134 but it has not signed the European Conventionon the Exercise of Childrens Rights 1996. As a matter of strictlaw, since the UN Convention has not been incorporated bystatute into English domestic law, courts are not bound to applyit,135 though it has nevertheless been said136 that it commands andreceives respect.

1. The childs position in private law proceedings otherthan adoption137

1. The obligation to consider childrens views

It is only since the Children Act 1989 that courts have

become formallyobliged to consider the childs wishes andfeelings although in practice this had long been theposition.138 The Children Act obligation derives from the openingpart of the so-called statutory checklist, namely s 1(3)(a),under which the court must have regard to the ascertainablewishes and feelings of the child concerned (considered in thelight of his age and understanding).

This obligation, however, to apply the checklist in private lawproceedings only arises in contestedapplications.139 In otherwords even where private law orders are sought under thisAct,140 if the adults are agreed there is no obligation to consult thechildren. Indeed one of the reasons for limiting the application ofthe checklist to contested cases was to protect family autonomy.

This non-interventionist standpoint is particularly evident indivorce proceedings. Before the Children Act, s 41 of the

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Matrimonial Causes Act 1973 required the divorce court to besatisfied that the proposed arrangements for the welfare of thechild of the family were satisfactory or the best that can bedevised in the circumstances or that it is impracticable for the

party or parties appearing before the court to make any sucharrangements. The Children Act,141 however, amended s 41 so asto require the courts instead merely to consider whether itshould exercise any of its powers under the Children Act 1989with respect to [any children of the family]. (Emphasis added)and only in exceptional cases delay the granting of the divorcedecree. In so doing the legislation has, in the words of Douglaset al142 shifted the focus of the courts attention away fromhaving to be satisfied that the divorce may proceed in theinterests of the children, to finding some exceptional reason whythe divorce should not go ahead. The assumption which liesbehind this approach is that parents may be trusted in mostcases, to plan what is best for their childrens future, and that,where they are in agreement on this, it is unnecessary andpotentially damaging for the state, in the guise of the court, tointervene.

More recently, Parliament has had cause to rethink the wisdomof this non interventionist strategy. Indeed, during the passageof the Family Law Bill 1996 concern was expressed aboutinsufficient attention being paid to childrens interests in thedivorce process. Reflecting this concern, the Family Law Act1996 aimed to strengthen the emphasis on the childrenswelfare, first by setting out in s 1 of the basic principles to whichthe court should have regard, namely, the need to bring to anend an irretrievably broken down marriage:

(i) with the minimum distress to the parties and the childrenaffected;

ii. with questions dealt with in a manner designed to promoteas good a

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continuing relationship between the parties and anychildren affected as is possible in the circumstances.

Secondly, it intended to replace s 41 of the Matrimonial CausesAct 1973 with s 11 of the 1996 Act. This, whilst not changing thefundamental standpoint established by the Children Act 1989,was to have obliged a divorce court, when deciding whether itshould exercise its powers under the Children Act (a) to treat thechilds welfare as the paramount consideration and (b) to haveparticular regard to a checklist of factors including the wishesand feelings of the child considered in the light of his age andunderstanding and the circumstances in which those wishes

were expressed.

Commenting on this provision, the Lord Chancellor (Lord Irvine)said143 it:

is fully in tune with the new and increasing contemporary

awareness that a child is a person in his or her own rightthe divorce process must now have regard to the interestsand views of the children. They will now have a right to beconsulted about the proposals which parents are makingfor the future in which they have a vital interest.

Despite the obvious importance of these provisions, theGovernment announced in January 2001 that Part II of the 1996

Act (including, therefore, s 11) would not be implemented andindeed in due course would be repealed.144

(c) How childrens views etc, are investigated

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Even where their wishes and feelings have to be taken intoaccount, children are not normally made parties to theproceedings (and will not therefore be separately represented)though there is power to do so in proceedings before the High

Court and County Court145 but not before the magistrates court.The normal process through which the court will learn of thechilds views, wishes and feelings, is through a court welfarereport.146 These reports are provided by what are now calledChildren and Family Reporters.147 Reporters, who are independentof the parties are appointed by the court148 to investigate andreport on the childs circumstances. As the National Standardsfor Probation Service Family Court Welfare Workstates:149

The purpose of a welfare report is to provide the courtwith information about matters relating to the welfare ofthe child which will enable the court to make decisions inthe childs best interests.

In the course of their investigations Reporters would normallyinterview, or at any rate, see the child or children concerned and

both ascertain and report upon the childs views. They do not,however, subsequently represent the child in the courtproceedings. Reports normally contain recommendations which,though not binding upon the courts, nevertheless commandrespect to the extent that courts are required to state theirreasons for not following it.150

As has been discussed, unless the child is made a party toproceedings (which is rare) then he will not be separatelyrepresented in court, neither will he normally be examined bythe judge. Although a judge does have power to interview a childin private, the current practice is to use this power sparingly. Itis established that if a judge does interview a child in private hecannot promise confidentiality and for that very reason shouldbe cautious in agreeing to see the child in such circumstances.151

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Whether this practice of relying upon welfare reports toascertain the childs position is human rights compliant may be

debated.152

(c) Childrens ability to bring their own proceedings

One innovation of the Children Act was to make clearprovision153 for children to bring their own proceedings. The

scheme is that children wishing to seek a s 8 order must firstobtain leave of the court. It is established that leave must besought in the High Court,154 and before it can be given, the courtmust be satisfied that the child has sufficient age andunderstanding.155 Where the child is of sufficient understandingthen the normal rule of having to bring proceedings through aNext Friend does not apply156 and instead the child may instruct asolicitor in his own right. In practice very little use is made ofthis provision because it takes an extremely confident,knowledgeable, resourceful and determined child or young

person to commence such proceedings.

(d) The position in adoption proceedings

In adoption law it has always been, since its inception in 1926,incumbent upon the court to give due consideration to the

wishes of the children concerned having regard to their age andunderstanding.157 Currently, s 6 of the Adoption Act 1976 obligesboth a court and an adoption agency when reaching anydecision relating to the adoption of a child to so far aspracticable ascertain the wishes and feelings of the childregarding the decision and give due consideration to them,having regard to his age and understanding.158 On the otherhand, children are only made parties to adoption proceedings

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where they are in the High Court or county court159 andconsequently it is only at that level that they are separatelyrepresented. Moreover, unlike Scottish law,160 English law makesno provision for requiring even older childrens agreement to

their adoption.161

5. Evaluation

As a matter of substantive law, English law can perhaps be saidto be just about compliant with the UN Convention on the Rights

of the Child, save perhaps where courts make an order reflectingthe parents wishes and in doing so overlook, because they werenever investigated, the childs wishes. It is unlikely, however,that the UK would be able to comply with the EuropeanConvention on the Exercise of Childrens Rights 1996 insofar asthere is no provision for childrens party status in private lawproceedings before magistrates162 nor can it be said that childrenof sufficient understanding are entitled, as Art 3 requires, toreceive all relevant information and to be informed of thepossible consequences of any decision. Whether the current

practice of judges not personally examining the child is humanrights compliant under the European Convention on HumanRights is, as we have seen, an interesting question. Even soEnglish law has undoubtedly shifted from regarding children aspassive victims of family breakdown and instead sees themmore as participants and actors in the family justice process.

Notwithstanding this shift it is evident that more needs to bedone. As one commentator has said,163 there remains anundercurrent of non-engagement with children which must bebrought to the surface before there can be any real hope thatmore than a very small minority of children feel that they havebeen heard. Another study164 has shown that the needs ofchildren and families in private law cannot always be adequatelymet under current arrangements; improvements in the standardof court welfare practice depended on developing certain skills

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particularly working with children and understanding child careand child protection.

Undoubtedly, there is a pressing need for professionals to learnthe art and skills of communicating successfully with children soas to make childrens participation in the family justice a realityrather than a matter of rhetoric. Another possibility to keepGovernment on its toes might be to follow the Welsh lead andcreate a Childrens Commissioner. The Childrens Commissionerfor Wales was established in 2001 following therecommendations of the Waterhouse Report165 and through theCare Standards Act 2000 and the Childrens Commissioner of

Wales Act 2001. The Commissioner is the first childrensombudsman to be established within the United Kingdom.166 It isalso the first time in this country and possibly, the world, thatchildren have been formally involved in the appointment processof such a public sector officer.167 Space forbids detailed discussionof this office168 save to say that the Commissioners remit includesconsidering and making representations to the Welsh Assemblyabout any matter affecting the rights or welfare of children inWales.169 More specifically, the Commissioner has the power toreview and monitor the operation of arrangements for dealinginter alia with complaints and advocacy for children.170 He alsohas power to examine the cases of individual children, includingchildren of the exercise, or proposed exercise, by the Assemblyof any function including the making or proposed making ofsubordinate legislation.171

Nigel V. LOWE

Professor of Law and Director of the Centreof International Family Law Studies, Cardiff LawSchool

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