Lord chief justice calls for reform of family system
The adversarial court system is not appropriate for settling parental disputes over the custody of children, the lord chief justice said today.
Giving evidence to the House of Commons’ justice committee, Lord Judge (pictured) said he has ‘real concerns’ that the adversarial system ‘leaves a great deal to be desired’ in cases where there are no allegations of child abuse.
The government-commissioned Family Justice Review, which is considering these issues, will issue an interim report in spring 2011. Judge said he will be ‘disappointed’ if, when the review is published, ‘we end up adhering to the adversarial system in what I’ve described as private law cases’.
Judge said: ‘In cases involving the care and future of children, I have the most serious reservations about whether the adversarial system is in any way to the advantage of the child.
‘My real concern, and where my attention is directed at the moment, is the ordinary private law case: the case where the parents are no longer happy together and decide to split up, and they can’t quite agree about the future of the children, or what’s best for them.
‘I cannot think that the adversarial system improves their relationship with each other, and their relationship as a mother and father of these children. There, I think the adversarial system leaves a great deal to be desired, as the adversarial system means winning. There’s no winner in the context of a child case.
‘Then there are the cases where the parents are not acting in good faith, where one or other parent is using the child as a weapon to get back at the other partner. Those cases have got to be resolved as quickly as possible, because children simply cannot be treated this way. And there, again, the adversarial system gives the parent who is using the child as a weapon, a better opportunity to use the child as a weapon.
‘It’s not mediation: it’s about standing back and everybody trying to take a sensible view that it is not about victory, but what suits the interest of the child best. You may say this is idealistic, but it shouldn’t be too difficult to achieve.’
Judge said that in cases where there have been allegations of child abuse, ‘it’s tantamount to say that the mother or father or carer is committing a crime. Those, I think, have to have something like the rigour of the adversarial system.’
He also reiterated comments made at the Lord Mayor’s dinner for the judiciary in July, where he called for greater efficiency in the court process.
‘I feel very strongly that we have to operate the legal aid system in a way that incentivises efficiency,’ he said today.
‘The legal aid system does not recognise efficiency. We pay more if the case takes longer. It may be that a case should take as long as it does, but just because a case takes longer doesn’t seem to me to merit more money. It seems to me elementary: we should pay more for the responsibility and for the work done well. Somehow or other we have lost that knack.
‘We do need to look at whether the advocate who acts for a defendant in a magistrates’ court should be paid less than in a Crown court – where so many cases collapse. Think of the number of police officers and witnesses that won’t have to go to the Crown court. I want the legal aid system to be working in tandem with an overall more efficient administration of justice.’
Judge said that Lord Justice Jackson’s recommendations on civil litigation costs, if implemented by the government, would create ‘a much more efficient civil justice system’.
‘The civil justice system works pretty well,’ he said. ‘A more problematic area is the actual cost to the litigant. Costs are prohibitively high.’
Comments
can hear m.o j. cheers
i suspect the ministry of justice will be cheering to rafters when they hear this. it will, i fear, help mr djongoly with his legal aid cutting appetite
Sadly the LCJ is correct.
Sadly the LCJ is correct. There are still too many solicitors out there who encourage their clients to take matters to court for the simple reason they get paid more that way than if the matter is resolved. Sadly it is these solicitors who seem to be thriving, whilst the good solicitors are being pushed out of business.
Evidence
There is plenty of evidence, since the Litigator scheme was changed so that cases in the magistrates' are fixed fee and less well paid the number of committals to the Crown Court have shot very significantly. Is this just a coincidence?
Evidence is the key
The changes to litigator fees did nothing at all to change magistrates' court fixed fees, so I think you are perhaps posting outside your depth here. Aside from an assertion some time ago by Straw that committals had risen, could you please post a link to the evidence that supports your assertion? A spike (3 months I think that then troughed) in cases here or there is evidence of nothing. You would also have to consider the impact of CJSSS and in particular woeful case disclosure given at the magistrates' court as an equally attractive reason for electing crown court trial.
Oh, and there is also the fact as reported by the Director of Public Prosecutions yesterday that half the matters due for trial at the crown court are discontinued. So what we see is that when solicitors force greater scrutiny of cases at crown court level it leads to inappropriate cases (cases which have been through a lawyer for a charging decision and where there is now no discretion to review it again prior to committal/sending to the crown court) being dropped.
dpp's statement
googling doesn't reveal ddp's statement.
could you post the link please
t
Slippery slope?
The observations of the LCJ may be near to the truth in respect of some family cases not involving allegations of child abuse. He should, however, be careful not to forget the basic philosophical reason why we have an adversarial system in this country. The system is not designed to achieve absolute justice. There is no such thing as absolute justice in any situation in life. People are more likely to do themselves justice or believe they are doing themselves justice if they fight to achieve what THEY see as justice in a particular situation. Sitting around a table trying to work out what is fair and reasonable might produce good results in certain family cases but this should be regarded as the exception to the rule and used at the discretion of individual judges case by case without the burden of judicial guidance notes or rules. There should always be the presumption that in an imperfect world the citzenry are at least allowed the chance to fight to achieve justice as they see it. Even what is in the best interests of a child is highly subjective.
In the case of criminal law, I would rather see 100 guilty men be found not guilty due to the work of a skilful lawyer under the adversarial system than 100 guilty men be found gulity under some sort of inquisitorial system with the price of 1 innocent man being found guilty.
We should seek to maintain the english legal system to serve the citizens of England and Wales in a way that is in line with our culture and traditions. What they do in europe should be of no concern to us.
This really sounds like a
This really sounds like a load of rubbish and I think you are missing the point entirely. The legal system with regard to the interests of children and both their parents fails badly the only people who benefit are solictors, could you by chance be one of these?
How does he propose that
How does he propose that these matters are resolved quickly?
The idea of a non adversarial
The idea of a non adversarial system is ideology. the whole reason most "private law" children disputes get to court is the unreasonableness of one or other (and in many cases to some degree both) parents. No degree of mediation or any other title one may wish to give an alternative approach will make an unreasonable parent reasonable. Thus there is no realistic and workable alternative. As for costs - it would be plainly wrong for Solicitors to have a financial incentive to achieving early settlement. What is so wrong with payment for work actually done. The process of detailed assessment of legal costs (be that by the Court or the LSC) as is current requirement is the safeguard & gatekeeping to whether that work was appropriate & necessary to progress the case.
IF ITS NOT BROKE LETS NOT TRY TO FIX IT - the whole problem is persistent medalling with ill thought out ideas or consideration of consequences with an ill resourced court service & CAFCASS service due to the tunnel vision that savings must be achieved at any consequence. The system is on the verge of collapse because it simply cannot cope with the persistent reduction in resources. Living in a democracy with rule of Law has its costs. The sooner everybody wakes up to reality the better.
The system is broke and
The system is broke and unless you ve been through it, you wont understand how damaging to the children and terribly inefficient it is. The private family law system could easily be revamped by removing the anachronistic view that "mother knows best". If we did this(by giving parents equal rights to see their children) then as was suggested above, we would only be in court where there are serious abuse cases. This would be much better for children but obviously far less lucrative for the family law industry
It is completely broke!
It is completely broke!
The adversarial system was,
The adversarial system was, once upon a time, an ideology before being put into practice. A wholly inquisitorial system would not come without its disadvantages, thus I feel the optimum solution would be a system of adversarialism with an element of judicial enquiry, allowing issues to be addressed quickly and directly. False allegations remain unquestioned, allowing unreasonable parents to feel at liberty to take advantage of this sluggish and inefficient system, to the detriment of thousands of children. The broken family is an modern epidemic which needs to addressed from root to remedy, and unfortunately the present mechanics of the family law system is not without complicity in its encouragement of unnecessary familial disorder. There is no time sooner than now for some evolution.
System
I think the legal system is somewhat broken when it comes to kids. I don't think there is ever a good way to get things taken care of properly when there are so many advocates that seem to be corrupt. Blackjack macht Spaß in diesem online casino und es ist toll zu beobachten, dass es auch andere Spieler gibt, die es lieben.
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Inquisitorial system
As a litigant-in-person, I expressed my concerns regarding the 'adversarial' family legal system to Lord Justice Nicholas Wall (now, Sir Nicholas Wall, Head of the Family Division) at the Court of Appeal in June 2009.
I told him that the system into which my ex-wife and I had been channelled was:
a) extremely costly to the former family unit, as two sets of law firms and barristers had to be paid. Our final legal bill was circa £100,000 (approx 2/3rds of the family assets)
b) extremely polarising and antagonistic, as each party was encouraged by their respective legal team to 'spill the dirt' on the other. This even involved so-called 'phishing' expeditions on Facebook, and the lodging of false and unproven allegations.
c) as a result of a) and b), immensely damaging to the children's emotional and financial health.
I recommended to Sir Nicholas that an inquisitorial system would be much more in the children's best interests.
I am pleased that Sir Nicholas and the Lord Chief Justice now appear to have taken on board the recommendations of a humble litigant-in-person.
I apologise to the legal profession in advance if any changes to the family system result in any significant reduction in their 'business'...
Mr BD
Perhaps the wrong lawyers
Perhaps the wrong lawyers rather than the wrong system? At the end of the day the lawyers act on your instructions. If you dont want it to be adversarial then it isnt.
Perhaps the wrong lawyers
Perhaps the wrong lawyers rather than the wrong system? At the end of the day the lawyers act on your instructions. If you dont want it to be adversarial then it isnt.
you seem to be one of the few
you seem to be one of the few people on here who actually knows what he is talking about.
I have spent most of last
I have spent most of last night crying my eyes out following the conclusion of protracted adversarial proceedings. I have lost weight, a good deal of hair, work, a portion of my sanity and the remainder of any faith in the other parent to put the interests our of children first.
This sorry saga began as an application for Sole Residence ( failed ) from an implacably hostile parent. In the intervening 18 months mediation failed as one party did not want to engage, various other orders were sought and yesterday the judge gave his ruling.
All this funded by the public purse on both sides. No wonder the judge dispensed with the final hearing and sought short submissions instead before making judgment. I suspect overbooking of cases may have had something to do with it also!
The result: no 'winners', four losers ( parents and children ). Five, if you count the tax-payer.
I would have done anything not to have gone through this process. It has entrenched hostility, encouraged fault-finding and blaming, destroyed any remaining trust and has left two otherwise capable and devoted parents bereft.
The likelihood of lasting emotional damage to two wonderful young children is huge unless both parents can now grow up and set aside the accrued resentments that this system encourages.
Ironically, because a final order for Shared Residence was made, the rules prevented the judge from actioning my request that both parent attend the sort of parenting course that 2 years ago may have made all of the above unnecessary.
I do have some positive suggestions, some radical, how things might be improved. I look forward to the day that formal proceeding are rare and not just couched as 'for the children of A and B' instead of 'Between A and B' but that be the reality.
Future of family law
I wonder whether the Government has the political will to revisit the issue of lay Magistrates and whether they still have a role in dealing with family cases in the 21st century.
I listened to the radio programme Law in Action the other week - the LCJ was being interviewed - I noted he only ever mentioned the words "Judges" and the necessity of Judges "case managing" the proceedings efficiently. The word "Magistrate" was never mentioned, but of course there is a push for as many family proceedings as possible to be dealt with in the Family Proceedings Courts in which the whole system militates against efficient case management. The current Family Proceedings Court system is just not "fit for purpose".
The problem is going to get worse given:
(a) the cuts to the court administrative staff and Legal Advisors - there is already a shortage of those trained to deal with family cases. In effect the legal representatives run the proceedings in the Family Proceedings Courts.
(b) the inevitable increase in unrepresented parties with whom Lay Magistrates are ill equipped to deal.
I am sure research would demonstrate that the costs of maintaining anachronistic hugely inefficient tribunals dealing with an increasing case load are considerably more than the salary and pension costs of appropriately qualified and trained District Judges.
However, this may be a political step too far !!
PS. The only reason I have time on my hands to listen to Radio programmes is because I am in limbo job wise due to the current debacle with the Family Law Contracts !!
Leading up to the election Mr
Leading up to the election Mr Cameron was toying with the idea of Children in Care being placed in Private Boarding Schools with term time spent with family members. I thought this was an excellent idea rather than a child having to fit in with paid strangers families especially when the income from this child in my mind is so excessive up to £400 per week per child! another angle for unemployed solicitors to consider fostering
Leading up to the election Mr
Leading up to the election Mr Cameron was toying with the idea of Children in Care being placed in Private Boarding Schools with term time spent with family members. I thought this was an excellent idea rather than a child having to fit in with paid strangers families especially when the income from this child in my mind is so excessive up to £400 per week per child! another angle for unemployed solicitors to consider fostering
"Smoke and mirrors" but business as usual
Using the adverserial route is often the route of choice for mothers as the family courts, the police and CAFCASS all favour mothers. They practice policies forced in by feminist lobby groups.
Policies such as "Happy MUM = happy child", "Mothers and children are victoms, men are abusers" and "Mothers won't lie and risk perjury" are common in the family courts.
Even when mothers are found to be lying, commiting perjury etc the courts do very little yet fathers are routinely removed from their childrens lives on nothing but hearsay.
Mr BD, you claim they listened but if your ex made false abuse claims the about changes would have made no difference to your case.
Not until the courts stop rewarding mothers for lies, false claims etc will anything change.
When the police start investigating mothers and procecuting them for perjury, abuse, wasting police time and tens of thousands of tax payers money and actually punishing them with more than a "slap on the wrist", then the above changes might work.
The whole system from the police to the courts, CAFCASS and social services are more concerned with keeping mothers happy than their claimed interest in the childrens welbeing.
So my point, While the courts, police etc remains under the control of feminist policy it will be the route of choice for mothers. The number of abuse claims will probably go up (although they'll explain this as more trust in the legal system) as mothers try avoid the mediation approach.
Hi David of Oxford. I
Hi David of Oxford.
I actually agree with most of your comments.
I was fortunate enough to have a comment aired on Radio 4 recently, in which I critisized Sir Nicholas Wall for very simplistically blaming parents for using their 'children as weapons' and not recognising in the least the fact that it is the legal system over which he presides which actually permits, and even encourages such atrocities to take place. The 'adversarial' system which generates hostility, and the ability of primary carers to lodge unfounded and unproven allegations with IMPUNITY, Wall's rationale being that to punish the mother is tantamount to punishing the child! What greater encouragement could he give to a disgruntled parent, intent on getting her own back on an ex partner!
My suspicion is that Wall - and the others at the Court of Appeal - are are all too aware of the reality of the situation. They are not as stupid as many think they are. They know full well that keeping the system 'adversarial' and giving one parent the power to lodge false accusations - leading to a restriction of child contact with the other - will generate ample and profitable litigation for their profession. This has been their Machiavellian calculation. And very clever it was indeed! My compliments! They can simply blame the overly litigious and uncaring parents!
Why the sudden change in their stance? Why is the Lord Justice now critisizing the adversarial system? Answer: they see the writing on the wall. They recognise that the MOJ is not going to permit their 'gravy train' to continue. There's no more money for it! The judges, therefore, are pre-empting the obvious conclusions of the Government review of the family justice system: they wish to appear as being the instigators of reform! Horray for the judges! What marvellous foresight!
Shame on them, I say.
Incidentally, David, my ex DID indeed lodge false accusations, which led to a separation between my children and I of seven long and miserable months. I fought and secured weekly and twice-weekly contact.
I then fought her application for 'Leave to Remove'.
My case was reported as Re D (Children) [2010] EWCA Civ 50.
As a litigant in person, I did more to help overturn the defunct law of Payne v Payne than a hundred trained barristers.
Mr BD
"My case was reported as Re D
"My case was reported as Re D (Children) [2010] EWCA Civ 50.
As a litigant in person, I did more to help overturn the defunct law of Payne v Payne than a hundred trained barristers."
But your application was refused and your case was described as 'not the case case for a reconsideration of the principles in Payne v Payne' ?
it's the money stupid
well done anon@ 23.03.
reading some of the comments on this thread, it seems there are many lawyers completely divorced from the reality of the 'simple fact' you point to! or are they suffering from a mild form of cognitive dissonance?
t
@ Tony I think some family
@ Tony
I think some family lawyers are fully aware of the harm they cause to families and children (although, of course, they would never actually admit it!).
Others delude themselves into thinking that they are actually helping the family: this is a psychological defence mechanism which enables them to feel happy about themselves.
I remember my ex's barrister idly chatting away to the court officer on day last year.
He told her how good he felt that his work enabled him to 'help' families!
I couldn't resist (rudely) butting in and asking him, rather rhetorically, exactly how he was helping my children by:
a) effectively 'stealing' £80,000 of their future inheritance in legal fees, and
b) assisting their mother in gaining permission to remove them from their home country of Britain to the relative poverty of Eastern Europe
Needless to say that he remained silent.
BD
re- coments on the family system
where there is no danger to the chid/ren and it is a marital / or partnership split up then why should the resident parent have the power to say no way are you seeing your child/ren these children who love both parents be put through the mental torture
off not seeing there dad/mum.the resident parent is thinking only off themselve to reap revenge i have heard it so often there is no way he/she will ever see them again .
where if mediation was made law then councilors coud be used to to let both parents
see how much they are hurting there child/ren by stopping them seeing someone they love dearly and there should be some emotional support for the hurt partner. and think off it another way why should the resident partner be left stuck in the house 24/7
and the other out gadding about with not a care in the world and the same applies
to the grandparents why should one set off grandparents be left with the child/ren dont take it out on them because in most cases the kids love there grandchild/ren
it takes a while to get overthings , but think about it will take a heckoff a lot longer if you are stuck in with the child/ren 24/7 it does not matter how good a parent is its hard being with your child /ren all day trying to cope with there demands it took to persons to bring the child/ren into the world it so it should take two to look after them. and ant parent who does not want to take there share,then then the child /ren are better without him/her. then the absent parent should be hit where it hurt.s no sorry folk not there lol but in the wallet . so to all these parents out there think off them first because they sure will help you. So dont let the lawyers get your hard earned cash get mediating. they will find other ways off robbing the public and if any lawyer before you start shouting at me think off what i have said and ask yourself the same question but the snag is you must give a honest answer .
i rest my case your honour
cs
re- coments on the family system
where there is no danger to the chid/ren and it is a marital / or partnership split up then why should the resident parent have the power to say no way are you seeing your child/ren these children who love both parents be put through the mental torture
off not seeing there dad/mum.the resident parent is thinking only off themselve to reap revenge i have heard it so often there is no way he/she will ever see them again .
where if mediation was made law then councilors coud be used to to let both parents
see how much they are hurting there child/ren by stopping them seeing someone they love dearly and there should be some emotional support for the hurt partner. and think off it another way why should the resident partner be left stuck in the house 24/7
and the other out gadding about with not a care in the world and the same applies
to the grandparents why should one set off grandparents be left with the child/ren dont take it out on them because in most cases the kids love there grandchild/ren
it takes a while to get overthings , but think about it will take a heckoff a lot longer if you are stuck in with the child/ren 24/7 it does not matter how good a parent is its hard being with your child /ren all day trying to cope with there demands it took to persons to bring the child/ren into the world it so it should take two to look after them. and ant parent who does not want to take there share,then then the child /ren are better without him/her. then the absent parent should be hit where it hurt.s no sorry folk not there lol but in the wallet . so to all these parents out there think off them first because they sure will help you. So dont let the lawyers get your hard earned cash get mediating. they will find other ways off robbing the public and if any lawyer before you start shouting at me think off what i have said and ask yourself the same question but the snag is you must give a honest answer .
i rest my case your honour
cs