The Bar Council and Family Law Bar Association (FLBA), which represent barristers and family barristers in England and Wales respectively, have urged the Government to take a considered and practical approach to reforming family law and not to rush to legislate, as it published its response to the Family Justice Review.
Commenting on particular areas of the Government’s response, Nicholas Cusworth QC, Chairman of the FLBA, said:
“There are parts of the Government’s response, which we welcome, such as strengthening the Court’s enforcement rules, for which we have called for some time. Current rules are piecemeal and ineffective, and a cohesive approach to revising them would be a positive step.
“However, there are a number of elements of the Government’s response where question marks remain. On shared parenthood, we agree with the Family Justice Review’s finding that, learning lessons from the Australian experience, legislating on this issue risks creating the perception that there is a right to substantially shared or equal time, for both parents. It is already widely understood and applied by the courts that children benefit from having a relationship with both parents and legislation would be unnecessary and may do more harm than good. The Government must consider this with the greatest of care.
“The Government continues to place great emphasis on mediation. Mediation in private law cases is supported and encouraged, but there will always remain a significant minority of cases that do have to go to court. The extent to which the size of that minority diminishes after the introduction of compulsory mediation is not yet clear. Particularly given the likely increase in the numbers of litigants in person anticipated when the LASPO Bill becomes law, there may be very little reduction (if any) in the numbers of private law cases requiring court intervention.
“We understand that the Government is eager to limit delays in public law cases, but legislation which enables the state to remove children from their parents’ care is, understandably, a very emotive area. The child’s welfare must always be the paramount consideration, and the swifter resolution of care proceedings is certainly to be supported. There is a perception that the courts are currently allowing parents who risk losing their children too much of an opportunity to argue their case, allowing delay which may be contrary to the best interests of the child. The must also be an awareness, however, that a six month guillotine risks creating exactly the type of parental backlash that the Government says it is trying to avoid through other proposals. The firmer the requirement to finish in six months, the more likely it is that decisions will be taken without the best available evidence, in an area where any mistake is potentially disastrous for the child concerned. The less discretion the court has, the more likely this becomes. Judges and barristers are certainly aware of this tension.
“We remain ready and willing to work with the Government to provide the views of experience practitioners as to how these proposed changes would affect the family justice system in practice.”
Notes to editors
1. For further information please contact the Bar Council Press Office on 020 7222 2525.
2. The Bar Council represents barristers in England and Wales. It promotes:
· The Bar’s high quality specialist advocacy and advisory services
· Fair access to justice for all
· The highest standards of ethics, equality and diversity across the profession, and
· The development of business opportunities for barristers at home and abroad.
The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.
3. The Family Law Bar Association (FLBA) exists to represent the views of the practising members of the family Bar in England and Wales.