The government’s 'lamentable history of procrastination’ in family justice has failed to deter England and Wales’ most senior family judge from optimistically presenting a detailed timetable for reform under the existing statutory regime.
In his latest View from the president’s chambers, family division head Sir James Munby highlights a programme he would like to see completed before spring next year.
The online divorce project 'must proceed as fast as sensibly possible,’ Munby says, warning that it 'must be more than a simple electronic version of the existing processes’.
He calls for a complete 'de-linking' of divorce and money. 'Only a minority of divorce cases give rise to a money claim, and divorce as a process is largely administrative and bureaucratic,' he said.
'Whatever the theory, judicial involvement in the process is limited and, unless the petition is defended, involves no face-to-face contact (whether in a courtroom or by visual electronic link) with the parties,' he said. 'In contrast, judicial involvement in money claims is significant, usually involving face-to-face contact, and, even if the case is eventually settled, requiring considered expert judicial approval of the final order.'
Necessary amendments to the Family Procedure Rules must be agreed by the end of the year to implement the remaining recommendations of the Financial Remedies Working Party, all aspects of online divorce, formal de-linking of divorce and ancillary relief and specialist financial remedies courts.
Once this is complete, work must proceed rapidly on necessary amendments to the rules to enable money claims to be dealt with under a single set of rules, with a common application form, process and procedure.
Work must proceed for the initial roll-out of the first pilot financial remedies courts 'as soon as sensibly possible' in late 2017 or early 2018.
Munby acknowledges that his programme is challenging, 'but I am sure eminently "do-able" given appropriate commitment and energy'.
In March the government said it would be publishing a green paper with proposals on family justice.
Munby says: 'The lamentable history of procrastination suggests it would be unwise to assume speedy progress. Obviously it would be better, if divorce law reform was seriously on the agenda, to delay full implementation of online divorce until we know what shape the reformed law might take. But we cannot allow the pressing imperatives of procedural and digital reform to be delayed in anticipation of such an uncertain future.'
He adds: 'Absent of clear decisions from government in the reasonably near future, we have to proceed with reform on the basis of the existing statutory regime.'
Munby concludes his update with a final dig at government, after recommending that the words 'or the family court' be added to the Inheritance (Provision for Family and Dependants) Act 1975 or Trusts of Land and Appointment of Trustees Act 1996 to resolve jurisdiction challenges faced by practitioners.
The change was identified and recommended by Lord Justice Briggs in his report on civil justice reform, Munby notes. 'It was rejected, without any adequate explanation by government for reasons which are unfathomable. Is it really too late for government to reconsider? Or does the inconvenience of litigants and the administrative burden on [HM Courts & Tribunals Service] count for nothing?'