Against a background of demands for equal parenting and open family courts, the government has pledged to overhaul the beleaguered family law system with court-based mediation. But Grania Langdon-Down asks whether this will be enough to silence the critics

Family law has been making headlines – from Batman on a Buckingham Palace balcony and the proposal that mothers who unreasonably block contact could be tagged and subject to curfews, to the chaotic shambles of the Child Support Agency and the appointment of an ‘outsider’ to head the Family Division.


With the clamour growing that the family justice system is failing, particularly in relation to contact, how do family practitioners view their role? How are they adapting to the drive for more negotiated settlements and how do they want family law to develop?


For Kim Beatson, chairwoman of Resolution, formerly the Solicitors Family Law Association, this field has undergone a sea-change over the past 20 years as bitterly contested divorce hearings have given way to a much more non-confrontational approach. This draws on lawyers’ negotiation and mediation skills, and is reflected in their recent decision to change the association’s name to reflect its aims more accurately.


She says: ‘There has been a huge drive on the part of practitioners to behave more responsibly. This is partly because the work has become so specialist, partly through the work of Resolution and partly because people have become more aware of how traumatic family breakdown is for children. On the clients’ side, there is the fear of legal costs and litigation. Fewer people are eligible for public funding, while many middle-income families simply cannot afford solicitors. Add that together and you see a big and continuing cultural change.’


As Sally Dowding, a member of the Law Society’s family law committee and chairwoman of the children law sub-committee, says: ‘The picture of us as sharks making money out of our clients’ misery is entirely unreasonable.’



The drive towards more negotiated settlements is being pushed forward by the government with a package of measures under its ‘Next Steps’ proposals (see [2005] Gazette, 20 January, 4). It says it has freed an extra £7.5 million to help families avoid litigation in favour of court-based mediation and conciliation projects because, although the number of contested divorce hearings has dropped, the number of applications over contact and residence has increased significantly from 52,924 to 94,598 between 1992 and 2002.



The measures also include provisions to toughen the courts’ enforcement powers against parents who unreasonably deny contact, although tagging recalcitrant mothers is unlikely to make it into the final Act.


For Andrew Greensmith, vice-chairman of Resolution and a family law partner with Preston solicitors Dickson Haslam, the proposals are a ‘wasted opportunity’ because the government has failed to introduce the statutory presumption of co-parenting proposed by Resolution.


Ms Beatson, a family law partner with London-based Anthony Gold, agrees: ‘The more I think about the presumption of co-parenting, the more I am sure its introduction is necessary to change the culture. It is no good saying to clients “there is a common law presumption about contact embedded in case law”. We need to be able to say there is a statutory presumption that you will offer the non-resident parent significant contact unless there are good reasons not to.


‘I think the government backed off because the judiciary is very influential in maintaining that the current presumption that the child’s welfare is paramount is enough and in maintaining that there could be a conflict if you introduce a second presumption. I don’t think that would be the case because the first is absolute and the second is rebuttable.’


The issue of contact has become highly politicised through the media-savvy exploits of some of the fathers’ groups. Marilyn Stowe, head of family law at Graham Stowe & Bateson in Harrogate, supports the principle of equal parenting after listening to the impassioned responses of fathers to an article she wrote. She says she saw the inequalities in their rights and after looking again at the issue in depth, decided the right approach may be a presumption of co-parenting after divorce, albeit only as a starting point.


Ms Stowe adds: ‘The fathers’ groups have been phenomenally successful in bringing this issue to the attention of politicians and the public. The problem is the breakdown between them and the government, which doesn’t want to take on board their demands for equal parenting.’


As part of its measures to reduce court battles, the government has announced a national roll-out of an accreditation scheme for family lawyers to encourage in-court conciliation.


This has raised eyebrows among practitioners, given the accreditation schemes already being run by the Law Society. The family law panel has about 4,000 accredited practitioners, while the advanced family law panel has about 500 members. Resolution also runs its own accredited specialist panel, with 1,000 members.


Ms Stowe has been chief assessor to the Law Society’s family law panel since its inception in 1999 and she is proud of its achievement in raising standards. She also insists it is setting a lead with its re-accreditation process, which is ‘quite severe’ and helps maintain standards.


‘The way I see things going is that there will be an amalgamation of existing panels in the same area under the administration of the Law Society, which I think is accepted as the appropriate regulatory body,’ she says.


Practitioners have also been studying the private law programme published by Dame Elizabeth Butler-Sloss, the outgoing President of the Family Division, in which she says the first dispute resolution appointment to try and resolve child arrangements must be listed within four to six weeks of an application.


Jane Craig, a family law partner with London solicitors Manches, says: ‘Private law cases are shuffled down the list. It is right that public law cases are given precedence because a child may be at risk. But the delays in private law cases can also be very damaging for children and they inevitably prejudice the non-resident parent. Money cases are the really poor relations. If you have a financial dispute resolution hearing at the beginning of February and it doesn’t settle, the date for the final hearing is likely to be October and that is outrageous.’


Philip Moor QC of 1 Hare Court in London, who is chairman of the Family Law Bar Association, says more judges must be appointed and more courts made available. ‘In the High Court over the last 30 years, the number of judges in the Family Division has gone up by one. The number of judges in the Queens Bench Division has gone up by 28. We just haven’t kept pace.’


Resolving the problem of delay will be one of the priorities for Lord Justice Potter when he takes over as the new President of the Family Division on Dame Butler-Sloss’s retirement in April. Lord Justice Thorpe is to take on the new role of deputy head of family justice and head of international family law.


Lord Justice Potter’s appointment came as a surprise because Sir Mark, despite his proven managerial skills, has no experience of family law, while the media focused on his previous role as Lord Falconer’s former pupil master.


Ms Craig says: ‘It is a surprising appointment. It may prove to be a breath of fresh air but the jury is still out.’


Another of Lord Justice Potter’s tasks is likely to be overseeing the opening of the family courts. Many family practitioners are keen that judges give anonymised judgments in open court so the public understands how and why judges come to their decisions in difficult cases.


Mr Greensmith says: ‘It is unjustifiable to have so much going on behind closed doors. The decision by Mr Justice Ryder to publish his judgment in the case involving former Home Secretary David Blunkett was very bold but very effective because people could see straight away why decisions were being made.’


However, Ms Dowding, head of family law at Elwyn Jones & Co in Bangor, warns: ‘People must be very mindful that if you live in a small community, you don’t have to name a child for them to be identified.’


Mr Moor also adds a note of warning. ‘I would approve of judges giving anonymised judgments in open court. But I would strongly oppose all court proceedings being in open court. Clients often ask on the way to court – “Is the Sun going to be there?” People need to make full and frank disclosures and you won’t get that if people feel under even more pressure.’


The trauma, cost and uncertainty of court hearings are among the drivers behind the growing popularity among practitioners of collaborative law – a US-inspired process whereby both parties and their lawyers agree that if they cannot reach a settlement and the case has to go to court, new lawyers will have to be instructed. The couple meet together with their lawyers to discuss financial and children arrangements, so keeping control of the process while being supported by their legal advisers. The lawyers will bring in experts as needed, including mediators, family consultants, accountants and financial advisers.


James Pirrie, a partner with London firm Family Law in Partnership, is chairman of Resolution’s collaborative law committee. By the end of the year, he hopes to have 350 trained lawyers – and he is delighted that the Legal Services Commission is planning to run a pilot scheme for publicly funded couples.


Mr Pirrie says: ‘Training as a collaborative lawyer has changed the whole way I work. Suddenly all my clients are listening rather than demanding and I realised it was because I was behaving differently. Clients come to us saying “I need someone really tough to fight this case if I don’t get a fair deal”. But we never hear the end of the sentence. All we hear is “I need someone really tough to fight this case” and we are off. What we need to do is move away from concentrating on how to split the pie and think about something more transformative.’


He explains that the other important theme is the voice of the child. ‘We need to find a way to help parents hear their children’s voices rather than voice their own priorities in the name of the child.’



Although the pressure is on to settle cases, it is the big money cases which have been fought through to the House of Lords – starting with White v White in 2000 – which have changed the way women’s roles in looking after the home and caring for children have been valued in the splitting of assets. No longer limited to ‘reasonable needs’, the starting point is now ‘the yardstick of equality’.



Ms Beatson says the big money cases have also had a knock-on effect for those with limited assets. ‘There has been a revival in recent months, partly due to the presumption of equality in larger money cases, of Mesher arrangements. These involve one party, usually the husband, retaining a deferred interest in the family home, which he receives if the wife remarries or when the child reaches 18. Five years ago, these were unpopular because it can cause great hardship to the person paying it.’


A survey of 63 family lawyers by accountants Grant Thornton’s forensic team, found that, on average, women achieved a better or considerably better settlement than men 60% of the time, largely because they stayed in the family home with the children. Toni Pincott, a specialist in matrimonial financial settlements at the firm, says more equal financial splits will need a cultural shift towards a greater proportion of divorcing couples being granted shared residence orders for their children.


When it comes to deciding who should receive what, the big concern for family lawyers is that the cuts in legal aid have forced many practitioners to stop doing publicly funded work, while limits on eligibility leave many couples unable to afford legal advice.


Ms Craig says: ‘I fear the death of the legal aid family lawyer is not far off and will happen unless the government wakes up to what its cuts are doing to access to justice. Big money cases are intellectually taxing where there are trusts and complicated company structures but cases where there isn’t enough money are 100 times harder.


‘What the government must do is separate out the family legal aid budget and provide proper resources, including funding for alternative dispute resolution and alternative support services.’


Maeve O’Higgins, head of the family department at the east London practice of Edward Fail Bradshaw & Waterson, agrees. ‘The only way to keep doing publicly funded work is to take on a large volume of cases and that is very stressful. I also do a mix of publicly funded and privately funded work. It is the only way I am able to manage. My privately funded work subsidises my publicly funded work because I can charge a private client a much higher hourly rate than I can ever recover in a publicly funded case.’


Alongside improvements in the legal aid field, family practitioners have a checklist of changes they would like to see, including statutory protection for cohabiting couples who separate and court backing for pre-nuptial agreements, provided there are proper safeguards.


Ms Craig, who chairs Resolution’s cohabitation committee, says: ‘Call me an optimist, but I really believe that we are going to have a change in the law within the next three years. My initial response when the government referred the issue to the Law Commission was disappointment because I thought it was being kicked into the long grass, but now I believe it is because they want to get it right.’


For Ms Dowding, one of the next developments should be the simplification of divorce law so it is as painless as possible. ‘We don’t need to make divorce more difficult, we need to make marriage more difficult because that is where the problems start.’


Grania Langdon-Down is a freelance journalist