Sunteți pe pagina 1din 45

Judicium .

it

Nigel V. LOWE

TYPES AND STYLES OF FAMILY PROCEEDINGS IN ENGLAND AND WALES

INTRODUCTION

1. Background to the court system

England and Wales, which is a separate legal jurisdiction to Scotland and to Northern Ireland, is a common law country. Although, as will be seen, there has been a developing trend to have specialist courts to hear family disputes, particularly those involving children, in broad terms there are three levels of courts with original jurisdiction to hear family cases. In order of superiority, they are the High Court, county court and magistrates court. The former two are entirely staffed by professional judges. The latter courts are mainly staffed by unpaid lay persons known as magistrates or justices. Lay tribunals comprise three magistrates. Provision is also made for the appointment of full time professional judges now known as district judges (magistrates courts) [formerly known as
1

stipendiary magistrates]. All lay magistrates courts have the services of a Justices Clerk, who is a trained lawyer and whose function, inter alia, is to advise the bench on matters of law.
1 2

In general, appeals from magistrates courts lie to the High Court and from both the county court and the High Court to the Court of Appeal. A final appeal from the Court of Appeal lies to the House of Lords.
3 4

2. The Judiciary

All professional judges are appointed by the Queen on the recommendation of the Prime Minister on the advice of the Lord Chancellor. All appointees have extensive experience as legal advocates. In the past judicial appointments in the Supreme Court were confined to barristers but since the Court and Legal Services Act 1990 appointments are also open to solicitors, the common requirement now being a 10 year High Court qualification. In all cases, however, full-time judicial appointments will normally only be made after satisfactory service as a part-time judge. In short, all full-time judges are highly experienced lawyers. Most will be aged between 45 and 70. Most are men.
5 6 7 8 9 10 11

Appointments of magistrates are made in the name of the Queen by the Lord Chancellor after consultation with local advisory committees. So far as the lay magistracy is concerned no formal qualifications are required save that the person concerned should reside in or within 15 miles of the commission area for which he or she will be appointed. Employers are required to release their employees for such time as is reasonable to permit them to serve as magistrates. Lay magistrates do not get paid for the performance of their legal duties although they are entitled to claim expenses for travel
12 13 14 15

and subsistence and for loss of earnings in the exercise of their office. Appointments are normally for six year terms. The effective retirement age is 70.
16 17 18

Although magistrates courts committees have long had to provide courses of instruction for justices in their area, training for professional judges is a more recent requirement. All judicial training is now the responsibility of the Judicial Studies Board, which was first established in 1979, and re-established in 1985. It now has responsibility inter alia for the provision of training in the family jurisdictions as overseen by a Civil and Family Committee and, in the case of magistrates, by a Magisterial Committee. The essential philosophy of the Board is to provide training for judges by judges though as a matter of fact the Board includes leading academics and other professionals, as well as judicial membership albeit that the latter predominate. In the family law field the Board now provides induction courses for all new deputy district judges and refresher seminars for established circuit judges. It was also responsible for extensive training on the Children Act 1989 and, more recently, on the Human Rights Act 1998.
19 20 21 22 23 24

3. Advocates

25

In England and Wales there is what is commonly referred to as a divided profession comprising barristers and solicitors. Clients seeking legal advice and redress are required to approach a solicitor who in turn may engage or brief a barrister either to provide an opinion and/or to act for the client in court. Where a barrister is so briefed it will be he or she who will exclusively act as the advocate in court. However, barristers no longer have exclusive rights of audience in the higher courts and solicitors can therefore act as an advocate. In practice, solicitors tend to act as advocates, if at all, in the lower courts, particularly in the magistrates court.
26

In so-called public law children cases representation of children is usually undertaken by solicitors from the Law Societys Children Panel who are specially trained and assessed as having the necessary skills. They may also be members of the Law Societys Family Panel and many who practise in family cases are also members of the Solicitors Family Law Association (SFLA) and, if they have passed the necessary written examination, members of the SFLAs family panel. There is no equivalent Panel for barristers although there is a specialist Family Law Bar Association to which most practising in family law belong.
27

The Law Society has published a Family Law Protocol which sets out best practice for solicitors on all aspects of private law family disputes and incorporates the Solicitors Family Law Association Code of Practice.
28

3. The Adversarial System

Although in family law cases, particularly those involving children, proceedings have become markedly less adversarial with the courts assuming more of an inquisitorial role this has to be understood in the context of the English legal system. Although particularly in Children Act 1989 cases courts have been given considerable responsibility for the conduct and management of proceedings, it remains the case that the parties are still largely responsible for what points to raise and what evidence to use in support of their argument. Each party is entitled to present both written and oral arguments, to crossexamine their opponents witnesses and to counter the others arguments. While it is certainly true that family judges are not mere umpires in a contest between the parties, they do not control proceedings in anything like the same degree as in Continental European jurisdictions. In particular, unless the child
29

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

3. Sources of law

As in all common law jurisdictions there are two primary sources of substantive law, namely, statute (as augmented by secondary legislation, that is, Rules and Regulations) [note there are no Codes in English law] and common law, that is, law which solely derives 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 or inherent jurisdiction in the High Court, that remain based in common law.

Unlike civil law systems, case-law both in the form of interpretation of statutes (the vast majority of case-law) or the development of the common law, plays a hugely important role in English family law. The doctrine of precedent viz that House of Lords decisions are binding on all lower courts, Court of Appeal decisions bind both themselves and all lower courts and High Court decisions bind lower courts, applies in family law matters as in all other cases.

2. JUSTICE BY TRIAL IN THE COURTS

# 1. JURISDICTION AND ORGANISATION OF THE COURTS

1. Some Background Information

Unless specifically prescribed, parties are free to choose in which court to make an application. Accordingly, actions for protection against domestic violence, free standing private law applications concerning children and adoption applications can be brought at any level of first instance court. However, all divorce petitions must be brought in the county court and consequently all the ancillary issues relating to children, property (including the matrimonial home) and money are also dealt with there. In any event, magistrates have no jurisdiction over property nor to make declaratory orders as to the parents and childrens status, so applications must be made for the two higher courts. In certain areas, such as international child abduction, jurisdiction is confined to the High Court.
30 31 32 33 34 35

The 2001 Judicial Statistics (the latest available) gives some idea of the relative workload of the different court levels. For example, of 112,012 private law applications for orders relating to children, 25,411 (23%) were made to the magistrates courts, 86,269 (77%) were to county courts and 332 (>1%) to the High Court. A not dissimilar proportional workload can be seen in adoption with 1,598 (31%) applications being made to magistrates courts, 3,298 (66%) being made to the county court and 111 (2%) being made to the High Court. The vast majority of domestic violence applications, 27,810 (98%), are made to the county court, with magistrates courts only receiving 372 (1%) and the High Court 100 (>1%) applications. In addition to these applications county courts handled virtually all of the 161,580 divorce petitions including any applications for ancillary relief making 10,858 maintenance orders in respect of children, 26,627 lump sum and property orders for spouses and 10,295 orders for spousal maintenance.
36

From this summary, it can be seen that the major workload of private family law cases is handled by county courts, though
6

with magistrates courts dealing with a significant minority of cases concerning children and the High Court handling relatively few mainly difficult or significant cases relating to all types of family 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 special courts (e.g. matrimonial or family judges, youth judges)?

The short answer to these three questions is that family law disputes in England and Wales are now dealt with by what may fairly be described as a family court system comprising specialist family court divisions or centres at all levels of original jurisdiction. How this is achieved varies from court level to court level with specialism being especially pronounced when dealing with children.
37

In the High Court, family law disputes are handled by the Family Division which was first created by the Administration of Justice Act 1970, s 1. Before that Act, family law work was divided between the old Probate, Divorce and Admiralty Division, which had exclusive jurisdiction over divorce, and the Chancery Division, which had a general supervisory jurisdiction over
7

children. The current jurisdiction is set out in Schedule 1 to the Supreme Court Act 1981 and broadly covers all types of family law disputes.

Judges sitting in the Family Division (which is headed by a President, currently Dame Elizabeth Butler-Sloss, and comprises a total of 18 judges [including the President] 4 of which are women), are mainly, but not exclusively, drawn from the specialist Family Law Bar and spend a substantial part of their judicial time sitting in family law cases. They are immensely experienced in dealing with family disputes.
38

At the county court most family cases are heard by what are effectively specialist divisions. All matrimonial causes (that is, actions for divorce, nullity of marriage and separation, together with actions for ancillary relief of maintenance, property division and children) must be commenced in a divorce county court (i.e. a county court specially designated for this purpose) or in the Principal Registry in London (which is a divorce county court for this purpose). 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. The former are competent to hear private law applications concerning children under Parts I and II of the Children Act 1989. These centres are not competent, however, to hear public law cases, which applications have to be heard by the care centres. However, care centres and, in London, the Principal Registry of the Family Division (which for these purposes is both a family hearing and a care centre) have full jurisdiction in both private and public law cases. Only designated family judges and nominated care judges, that is, circuit judges specified by the Lord Chancellor who have undertaken specialist training, have jurisdiction to hear cases at these centres. The thinking behind this development is that the concentration of family work in the centres ensures that specialist judges can be effectively employed to deal with cases expeditiously and that continuous hearings can be assured, thus avoiding the need for lengthy
39 40

adjournments. Most recently, that is with effect from October 2001, a new class of county court has been created, namely, adoption centres, which, as the name implies, deal exclusively with adoptions. The overall aim of the centre is to reduce delay and inefficiency in adoption court proceedings. Despite these centres specialisation is not complete, since non designated courts have jurisdiction to hear domestic violence proceedings even when these involve children.
41 42

Like county courts, magistrates courts were reorganised at the time of the Children Act 1989 with the creation of family proceedings courts. These are staffed by magistrates drawn from the family panel. They have sole jurisdiction to hear family proceedings. Membership of the Panel requires induction training and a course of basic training after a justice has commenced sitting. Magistrates are subject to appraisal in accordance with the Magistrates National Training Initiative. Those chairing courts are required to undertake additional training. The general training aims inter alia to inculcate knowledge of the Children Act 1989 and its philosophy, whilst Chairmanship training must also equip justices to be more productive in conducting court hearings and to be able to articulate reasons for their decisions.
43 44 45 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 mediation services, etc) present?

Although none of the above mentioned services are present in court, such services are nevertheless available in many cases. Legal aid, for example, is administered by a body now known as the Legal Services Commission. In family cases, parties apply for funding usually with the help of their solicitor and before court proceedings are initiated. Funding is available in all types of family proceedings but it is subject to both a merits and a means test. Although in family cases, particularly those involving children, it is relatively easy to satisfy the merits test, the income and capital limits are relatively low. Only the poorest qualify for funding without having to make any contributions.
47 48 49

So far as social services are concerned the court can, in private law children cases brought under the Children Act 1989, ask a local authority to prepare a report on the child. Where the court calls for such a report it can ask a local authority to arrange for it to be done either by one of their officers or such other person (other than a probation officer) as the authority considers appropriate. There is also power under s 37 of the 1989 Act in cases where it appears to the court that it may be appropriate to make a care or supervision order, to direct the local authority to investigate the childs circumstances. There is, however, no power in private law proceedings to make a public law order, nor can the court direct a local authority to institute public law proceedings.
50 51

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.

10

Is jurisdiction dispersed according to the nature of the disputes or to the time at which they arise (e.g. before, during or after divorce proceedings)? Or is there a functional pooling of jurisdiction, and if not, what are the obstacles to such a pooling?

Like so much of English law, jurisdiction has developed unsystematically and often by historical accident rather than by design. 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 nature of the dispute that mainly determines jurisdiction rather than timing.

To illustrate the above comments it is instructive to consider jurisdiction to hear divorce cases. When divorce was first introduced by the 1857 Matrimonial Causes Act it was considered to be such a serious issue that only the High Court could deal with it. This remained the case until the Matrimonial Causes Act 1967, which extended jurisdiction to county courts (at any rate those designated to do so) to hear any undefended matrimonial cause. The county court jurisdiction was later extended by the Matrimonial and Family Proceedings Act 1984, s 33 to hear all matrimonial causes and indeed all such causes must now be commenced in a county court. In other words in just under 20 years the High Court lost exclusive jurisdiction to hear divorce and now only hears cases transferred to them, which is rare.
52

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

11

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

Of course, not all private law disputes are in the context of a divorce. Disputes may arise between those who had cohabited rather than married or may be between parents or spouses and third parties. Disputes over property cannot be brought in the magistrates court, that has always been felt to be too important to leave to the lowest court. Most such disputes are brought in the 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 applications to adopt can for the most part be brought at any level of first instance court. There is, however, an important safety net to allow the transfer of cases from one level to another. Notwithstanding this relative freedom, it is established that certain types of cases, for example, applications by children for leave to apply for s 8 orders, applications to sterilise a child and those involving possible breaches of International Conventions dealing with Child Abduction or Custody should be brought in the High Court. There are, in any event, certain matters exclusively reserved to the High Court, for example, hearing applications under the 1980 Hague Convention on International Child Abduction and hearing wardship applications.
57 58 59 60 61

Where there is a free choice, litigants generally choose the county court since it is less expensive than the High Court yet more professional than magistrates courts. The High Court, quite rightly, tends to be used for difficult or complex cases or those involving important issues of law. It also tends to be used in cases involving a foreign element.
62

12

Are the relevant courts far or remote from the citizens?

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

Although the High Court is physically located in London, judges of the Family Division are all liable to go on circuit. Furthermore, additional judges are available to go out on circuit at short notice to hear cases requiring Family Division judges. In the result for at least some period of each year a major centre of population is likely to be visited by a Family Division judge. Furthermore, considerable judicial work at the High Court level is either undertaken by circuit judges sitting as High Court judges under s 9(1) of the Supreme Court Act 1991 or by deputy High Court judges appointed under s 91(4) of the 1991 Act.
63

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

County courts are numerous and geographically spread across the country. In total there are some 240 such courts overall staffed by 539 Circuit Judges and 337 District Judges. However, as has been said, by no means all of these courts have jurisdiction to hear all types of family proceedings. Approximately 176 are divorce county courts, 114 are family hearing centres and 56 are care centres with a similar number of adoption centres. Overall, however, no citizen should be more than an hours drive from an appropriate county court.
66 67

13

Magistrates courts are the most numerous of all courts. There are about 600 such courts with over 30,000 justices being on the active list. By no means all such courts are designated family proceedings 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 the proceedings, seeking evidence, enforcement of decisions? Does the judge play a conciliatory role?

By English standards family law proceedings, particularly those involving children, are markedly less adversarial than other types of proceedings. Indeed, the former President of the Family Division, Sir Stephen Brown once commented:
68

The proceedings under the Children Act are not adversarial, although an adversarial approach is frequently adopted by various of the parties. However, so far as the court is concerned, its duty is to investigate and to seek to achieve a result which is in the interests of the welfare of the child.

However, in Re L (Police Investigation: Privilege) Lord Nicholls, having acknowledged the great importance of the special role of judge in family proceedings and the desirability of avoiding confrontation and conflict in such proceedings, cautioned against simple labelling, pointing out that family proceedings possess some adversarial features and some inquisitorial
69

14

features. In any event, by civil law standards, proceedings would no 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. Under that Act the court must control their proceedings by setting timetables, giving directions about the assessment of the child, the appointment of experts and the filing of witness statements. They can also make orders in proceedings that neither party has specifically sought.
70 71 72

Although these developments under the Children Act 1989 marked a significant departure from previous practice and indeed has since led to the important introduction of the socalled Financial Dispute Resolution for resolving financial relief claims after divorce (discussed further below), in many ways the conduct of a case is still left to be parties and their advisers. The parties are responsible for the gathering and presentation of evidence. Beyond asking for reports on children the courts have no separate powers to gather evidence. The parties are responsible for the conduct of the case and, subject to the courts 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 by important rules relating to so-called discovery documents designed to prevent one side ambushing the other. Under this procedure parties are expected to list and disclose to the other relevant documents proposed to be put before the court.
73 74

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

Apart from the Financial Dispute Resolution procedure, the whole point of which is to facilitate agreement between the
15

parties, judges have no formal conciliatory role but would generally be expected to conduct the case so as to avoid unnecessary 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 their representatives?

As previously explained, notwithstanding a greater managerial role placed in the court, the parties and their advisers still play a key role in proceedings. They essentially control how the case should be presented, what orders should be sought and what evidence to bring in (and leave out). All parties to proceedings are permitted to present their case both by written statement and usually by oral evidence and are generally entitled to crossexamine another partys witnesses. These powers are subject, at any rate in Children Act proceedings, to the overall control of the court either to limit oral evidence or to dispense with it altogether. In practice a substantial hearing will be preceded by a directions hearing which is designed to enable a case to be well managed by determining what issues are agreed and what are not and anticipating any difficulties that may arise.
75 76

Although the number of litigants appearing in person (i.e. without legal representation) seems to be growing, for the most part, parties will be legally represented and it will be the lawyer who will present the case in court. Although the recent trend in family cases has been to place greater emphasis on written
16

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

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

Expert witnesses are brought in at the parties request but in Children Act cases, court leave is required. In determining leave the court has a proactive role in that it has a duty to decide in what areas expert evidence is required and to limit expert evidence to given categories of expertise and to specify the number of experts to be called.
77 78

The role of the expert is to give independent assistance to the court by way of objective unbiased opinion. It has been emphasised that experts should only express opinions which they generally hold and which are not biased in favour of one party. 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 in writing the areas of disagreement and give their opinions on the facts. In ancillary relief proceedings parties should, wherever possible, agree upon and instruct a single expert.
79 80

The opinion of an expert, however eminent, is not in itself determinative, since ultimately any findings are a matter for the court.
81

What is the role of the auxiliary services and the legal aid bodies?

17

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 and therefore have some individual discretion as to the conduct of individual cases, this is subject to quite detailed formally published procedural rules and practice directions which judges at all levels are expected to follow. So far as the High Court and county court is concerned the most important of these rules is the Family Proceedings Rules 1991 which apply to all types of family matters. The magistrates courts are governed by the Family Proceedings Courts (Children Act 1989) Rules 1991 in matters concerning children and the Family Proceedings Courts (Matrimonial Proceedings Etc) Rules 1991, in matters concerning domestic violence and maintenance. There are separate rules governing adoption, namely, the Adoption Rules 1984 applicable to the High Court and county court and the Magistrates Courts (Adoption) Rules 1984 - applicable to magistrates courts.
82

These rules are supplemented by numerous Practice Directions which are issued by the Lord Chancellor or, in the context of family law, by the President of the Family Division. They cover a variety of subjects and may deal with one specific issue, for example, that applications by children for leave to seek s 8 orders under the Children Act should be made to the High Court, or a whole area, such as the new approach to adoption. They can also deal with quite basic issues such as the citation of authorities and the bundling of evidence, and time estimates of court cases.
83 84 85

18

Are there emergency proceedings and emergency remedies?

The short answer to this is yes. In domestic violence cases, for example, applications for non molestation and occupation orders can be made quickly and, initially, on one partys application (proceedings where only the applicant is present are known as ex parte proceedings). Emergency steps can be taken to prevent a childs abduction out of the country and ex parte applications are permitted for private law orders under the Children Act. Interim relief for periodic payments of maintenance can 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 of redress?

Prima facie all courts, including those made in family matters (regardless of the level of the court that made the order) are ultimately enforceable (see below). They therefore should be obeyed unless and until they have been varied or successfully challenged.

Many court orders in respect of family issues can be varied in particular orders determining who should look after the child, who should have contact, periodic payment orders between spouses and for their children and orders such as non molestation and occupation orders. Orders that cannot be varied are those formally changing status, such as divorce, nullity, formal declarations of parentage, legitimacy and adoption, and lump sum and clean break orders after divorce.
87

19

With rare exceptions, orders made in respect of family matters can be appealed. As previously explained, appeals from magistrates courts lie to the High Court and from the county court and High Court to the Court of Appeal and from there to the House of Lords. Appeals from magistrates courts are not generally subject to any special restrictions but, save in certain strictly defined circumstances, permission is required to appeal to the Court of Appeal and even more restricted criteria need to be satisfied to appeal to the House of Lords.
88 89 90 91

Even where there are no specified restrictions, appeals are not that common partly because parties and their advisers can be penalised in costs if an appeal is thought to be hopeless. The appellate courts function is to determine whether the court below fell into legal or factual error. It cannot, therefore, simply substitute its own view. Fresh evidence is generally only admitted where it relates to some significant even that has occurred since the original hearing. In other words appeals are not hearings do novo.
92 93 94

Enforcement measures and penalties

In general terms all court orders are enforceable and disobedience is punishable as a civil contempt of court. In this respect family matters are no different, though particularly in children cases there is an understandable reluctance to punish offenders by imprisoning (or committing) them. As one judge once commented Committal orders are remedies of the last resort; in family cases they should be the very last.
95 96 97

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

20

as well as imprisonment. Magistrates powers are governed by statute and comprise a maximum fine of 5,000 and/or two months imprisonment.
99

There are stringent safeguards to protect individuals which must be strictly complied with before a contempt sanction may be imposed but in an important ruling, inA v N (Committal: Refusal of Contact), it was held that in considering whether to commit a mother for her persistent and flagrant breach of a contact order with the father, the childs welfare was a material but not the paramount consideration, and she was committed for 42 days.
100 101

The contempt sanction is the most serious one available for disobedience, and ought only to be used when other sanctions have failed. They are probably most often imposed in domestic violence cases. Lesser, but nonetheless useful sanctions include the power under s 34 of the Family Law Act 1986 in cases where a person is required to give up a child to another person, to authorise an officer of the court or a constable to take charge of the child and to deliver him to that other person.

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

Evaluative Assessment

Overall, the English family justice system has benefited enormously by the substantial modernisation of its procedure, particularly since the Children Act 1989. In the result there is a
21

generally fair and flexible procedure with every incentive (see further 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 to be lengthy delays. There are many causes but this is certainly one area where the 1989 Act can be said to have failed. Costs of English litigation are high much higher than in continental European systems. A striking example was given in a recent decision concerning the application of the Brussels II Regulation in which the wifes costs in the English proceedings were said to be 153,000 and the husbands 108,000 which compared with costs respectively of 11,000 and 2,600 in the German proceedings. As Thorpe LJ commented The inevitable comparison should give specialist practitioners in London pause for thought.
103 104 105 106

# 3. NEGOTIATED JUSTICE AND ALTERNATIVE CONFLICT RESOLUTION TECHNIQUES

1. General Background

107

Notwithstanding its adversarial character (or indeed because of it) mediation (or as it used to be called conciliation) has been a feature of the English family justice system since the early 1970s. It was prompted in part by the new divorce law which came into force in 1971 and which ended the argument that discussions as to how to resolve finance could bar the divorce on the grounds of collusion. It was encouraged in the Finer Report of 1974 and in 1977 the Bristol County Court introduced a conciliation appointment which was followed in 1978 by the creation in Bristol of the first out of court conciliation service. More services both in and out of court created and an umbrella body, the National Conciliation Council, was formed.
108 109

22

In 1982 the Solicitors Family Law Association was formed and it adopted a Code of Practice which embraced a conciliatory approach to be employed by family law solicitors. In 1983 an incourt conciliation scheme for dealing with disputed children cases began at the Principal Registry of the Family Division in London.
110

In short, by the 1980s there was a well developed interest in mediation which in turn reflected a change of attitude towards divorce and a shift of emphasis from the fact of its dissolution to its financial consequences and especially its effect on the children of the marriage.

Further developments took place in the 1990s, for example, in 1996 a pilot scheme for dealing with disputed cases of financial and property issues in divorce was introduced in various parts of the country under the auspices of the Lord Chancellors Advisory Group on Ancillary Relief and supported by the Solicitors Family Law Association and Family Bar Association.
111

Mediation was going to be at the heart of the new divorce law to have been brought in by the Family Law Act 1996 and indeed that Act does contain the first statutory basis of the use of mediation in the resolution of family law disputes in England and Wales. Although the Government have now abandoned plans to implement the divorce provisions in the 1996 Act, the principle of using mediation as a primary means of conflict resolution has survived.
112 113 114

The Judicial Studies Board, which, as we have seen, is responsible for judicial training, has organised a series of seminars both about mediation and other forms of Alternative
23

Dispute Resolution and, since November 2001, has ensured that district judges are specifically trained about the purpose of mediation. Meanwhile under the new Law Societys Family Law Protocol, issued in 2002, solicitors are required, unless it is clearly inappropriate to do so, to explain the mediation process and to advise on its benefits for clients. Furthermore, the suitability of mediation must be kept under review throughout the case.
115

2. The Current Position

Because of constraints of space, discussion will be confined to three areas, namely, mediation and legal aid, mediation and children cases before the Principal Registry and the Financial Dispute Resolution hearing.

i.

Mediation and legal aid

Family mediation is funded by the State as part of what is now called the Community Legal Service under the Access to Justice Act 1999 and the Funding Code. It has been placed at the forefront of resolving family disputes and, at any rate in publicly funded cases, by requiring, save in exceptional cases, those who want to apply for what is now termed legal representation, to attend an assessment meeting with a mediator. There is also a financial inducement to seek mediation inasmuch as neither family mediator nor assistance from a solicitor under the Help with Mediation service attract contributions from those eligible for public funding. Furthermore, the financial criteria for eligibility have been widened, so that at current rates, a client with disposable income of up to 695 per month will be able to obtain mediation free of any charges. Moreover there are no penalties if these mediation
116 117 118 119

24

attempts fail. In other words there is every incentive to seek mediation.

Since April 2001 the availability of public funded mediation, coupled with the requirement to seek it, applies to the majority of private law family disputes and applies equally to disputes between married couples and unmarried couples where they qualify financially and the dispute arises out of their family relationship, and also extends to family disputes with grandparents. Solicitors are required to report to the Regional Director if his legally aided client declines an offer to mediate any issue in the proceedings.
120 121

Notwithstanding the above scheme mediation remains a voluntary process which will only work if both parties are willing to attend. The mediator cannot give legal advice but can provide information on an even handed basis so to help the parties themselves on an informed basis. Mediation is normally confidential. The only exception is where statements are made during the process which indicate that a party has either in the past caused or might in the future cause serious harm to a child or 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 long been a scheme, in fact since 1983, for conciliation/mediation for dealing with contested children cases in the Principal Registry. Basically, the scheme operates as follows: The District Judge may at any time when considering what arrangements should be made for children involved in divorce proceedings and, where an application is made for a residence or contact order, refer the matter for a conciliation appointment. The appointment takes place before a district judge and is attended by a CAFCASS officer. Not only must the parties and their advisers attend the appointment but also any child aged 9 or
123 124 125

25

over who is living with either party and whose future is in dispute. The parties or their advisers will outline the nature of the application and the matters are in dispute. If the dispute continues, the parties are given the opportunity of retiring to a private room together with a CAFCASS officer (i.e. a Children and Family Reporter), to attempt to reach an agreement. As the 1992 Practice Direction states If the conciliation is successful, the district judge will make such orders, if any, as may be appropriate. If unsuccessful, the district judge will give directions (including time-tabling) with a view to the early hearing and disposal of the application. Neither the Judge nor the CAFCASS officer in the conciliation/mediation appointment can be involved in the subsequent proceedings.
126

Proceedings at a conciliation appointment are generally privileged and cannot be disclosed in subsequent contested proceedings before the court.
127

Although there are variations, this model is essentially followed in 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 and building on the success of the Lord Chancellors Ancillary Relief Pilot Scheme, there is now (that is from July 2000) a nationwide scheme known as Final Dispute Resolution (FDR) designed to facilitate agreements upon financial relief ancillary to divorce proceedings. An FDR hearing, which appointment should be ordered in every case save where it is not appropriate, in the circumstances, provides the parties and their advisers with an
130 131

26

early, short and informal hearing at which the parties are encouraged to reach a negotiated settlement by the active intervention of a judge. Both parties and their advisers are required to attend the hearing in person. The hearing usually lasts one or two hours, although out of court negotiations will take rather longer in most cases. The judge will have read the case papers in advance and will hear and read a summary of the parties respective arguments and of their position in the negotiation. He will then give a summary forecast of what in his opinion would be the likely outcome if the case were to proceed to trial. If, on the basis of this forecast, the parties reach agreement, an order by consent can be made at the end of the FDR hearing thereby ending the litigation. If no agreement is reached the case is set down for future trial, though the parties will have been warned about the costs implications of this move. The judge who hears the FDR appointment cannot then be involved in the contested formal hearing.
132

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

ADR hearings are informal in the sense that there is no prescribed format and judicial intervention varies with the judge. According to one experienced counsel between as many as 8090% of cases settle at or shortly after an FDR hearing. Furthermore, as a result of such hearings, in his view, lawyers are becoming better negotiators and are seeing more closely and more frequently the benefits of successful negotiations as a facet of litigation rather than abdication. To that extent the skills-base of the family law practitioner is widening and at the same time, the ethos of the family law advocate is developing ever more firmly in the direction of avoiding needlessly aggressive combat.
133

27

# 4. THE CHILD AND FAMILY DISPUTE SETTLEMENT

The UK is a State Party to the UN Convention on the Rights of the Child 1989 but it has not signed the European Convention on the Exercise of Childrens Rights 1996. As a matter of strict law, since the UN Convention has not been incorporated by statute into English domestic law, courts are not bound to apply it, though it has nevertheless been said that it commands and receives respect.
134 135 136

1. The childs position in private law proceedings other than adoption


137

1. The obligation to consider childrens views

It is only since the Children Act 1989 that courts have become formally obliged to consider the childs wishes and feelings although in practice this had long been the position. The Children Act obligation derives from the opening part of the so-called statutory checklist, namely s 1(3)(a), under which the court must have regard to the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
138

This obligation, however, to apply the checklist in private law proceedings only arises in contested applications. In other words even where private law orders are sought under this Act, if the adults are agreed there is no obligation to consult the children. Indeed one of the reasons for limiting the application of the checklist to contested cases was to protect family autonomy. This non-interventionist standpoint is particularly evident in divorce proceedings. Before the Children Act, s 41 of the
139 140

28

Matrimonial Causes Act 1973 required the divorce court to be satisfied that the proposed arrangements for the welfare of the child of the family were satisfactory or the best that can be devised in the circumstances or that it is impracticable for the party or parties appearing before the court to make any such arrangements. The Children Act, however, amended s 41 so as to require the courts instead merely to consider whether it should exercise any of its powers under the Children Act 1989 with respect to [any children of the family]. (Emphasis added) and only in exceptional cases delay the granting of the divorce decree. In so doing the legislation has, in the words of Douglas et al shifted the focus of the courts attention away from having to be satisfied that the divorce may proceed in the interests of the children, to finding some exceptional reason why the divorce should not go ahead. The assumption which lies behind this approach is that parents may be trusted in most cases, to plan what is best for their childrens future, and that, where they are in agreement on this, it is unnecessary and potentially damaging for the state, in the guise of the court, to intervene.
141 142

More recently, Parliament has had cause to rethink the wisdom of this non interventionist strategy. Indeed, during the passage of the Family Law Bill 1996 concern was expressed about insufficient attention being paid to childrens interests in the divorce process. Reflecting this concern, the Family Law Act 1996 aimed to strengthen the emphasis on the childrens welfare, first by setting out in s 1 of the basic principles to which the court should have regard, namely, the need to bring to an end an irretrievably broken down marriage:

(i) with the minimum distress to the parties and the children affected; ii. with questions dealt with in a manner designed to promote as good a

29

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

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

Commenting on this provision, the Lord Chancellor (Lord Irvine) said it:
143

is fully in tune with the new and increasing contemporary awareness that a child is a person in his or her own right the divorce process must now have regard to the interests and views of the children. They will now have a right to be consulted about the proposals which parents are making for the future in which they have a vital interest.

Despite the obvious importance of these provisions, the Government announced in January 2001 that Part II of the 1996 Act (including, therefore, s 11) would not be implemented and indeed in due course would be repealed.
144

(c) How childrens views etc, are investigated

30

Even where their wishes and feelings have to be taken into account, children are not normally made parties to the proceedings (and will not therefore be separately represented) though there is power to do so in proceedings before the High Court and County Court but not before the magistrates court. The normal process through which the court will learn of the childs views, wishes and feelings, is through a court welfare report. These reports are provided by what are now called Children and Family Reporters. Reporters, who are independent of the parties are appointed by the court to investigate and report on the childs circumstances. As the National Standards for Probation Service Family Court Welfare Work states:
145 146 147 148 149

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

In the course of their investigations Reporters would normally interview, 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 court proceedings. Reports normally contain recommendations which, though not binding upon the courts, nevertheless command respect to the extent that courts are required to state their reasons for not following it.
150

As has been discussed, unless the child is made a party to proceedings (which is rare) then he will not be separately represented in court, neither will he normally be examined by the judge. Although a judge does have power to interview a child in private, the current practice is to use this power sparingly. It is established that if a judge does interview a child in private he cannot promise confidentiality and for that very reason should be cautious in agreeing to see the child in such circumstances.
151

31

Whether this practice of relying upon welfare reports to ascertain 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 clear provision for children to bring their own proceedings. The scheme is that children wishing to seek a s 8 order must first obtain leave of the court. It is established that leave must be sought in the High Court, and before it can be given, the court must be satisfied that the child has sufficient age and understanding. Where the child is of sufficient understanding then the normal rule of having to bring proceedings through a Next Friend does not apply and instead the child may instruct a solicitor in his own right. In practice very little use is made of this provision because it takes an extremely confident, knowledgeable, resourceful and determined child or young person to commence such proceedings.
153 154 155 156

(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 and understanding. Currently, s 6 of the Adoption Act 1976 obliges both a court and an adoption agency when reaching any decision relating to the adoption of a child to so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding. On the other hand, children are only made parties to adoption proceedings
157 158

32

where they are in the High Court or county court and consequently it is only at that level that they are separately represented. Moreover, unlike Scottish law, English law makes no provision for requiring even older childrens agreement to their adoption.
159 160 161

5. Evaluation

As a matter of substantive law, English law can perhaps be said to be just about compliant with the UN Convention on the Rights of the Child, save perhaps where courts make an order reflecting the parents wishes and in doing so overlook, because they were never investigated, the childs wishes. It is unlikely, however, that the UK would be able to comply with the European Convention on the Exercise of Childrens Rights 1996 insofar as there is no provision for childrens party status in private law proceedings before magistrates nor can it be said that children of sufficient understanding are entitled, as Art 3 requires, to receive all relevant information and to be informed of the possible consequences of any decision. Whether the current practice of judges not personally examining the child is human rights compliant under the European Convention on Human Rights is, as we have seen, an interesting question. Even so English law has undoubtedly shifted from regarding children as passive victims of family breakdown and instead sees them more as participants and actors in the family justice process.
162

Notwithstanding this shift it is evident that more needs to be done. As one commentator has said, there remains an undercurrent of non-engagement with children which must be brought to the surface before there can be any real hope that more than a very small minority of children feel that they have been heard. Another study has shown that the needs of children and families in private law cannot always be adequately met under current arrangements; improvements in the standard of court welfare practice depended on developing certain skills
163 164

33

particularly working with children and understanding child care and child protection.

Undoubtedly, there is a pressing need for professionals to learn the art and skills of communicating successfully with children so as to make childrens participation in the family justice a reality rather than a matter of rhetoric. Another possibility to keep Government on its toes might be to follow the Welsh lead and create a Childrens Commissioner. The Childrens Commissioner for Wales was established in 2001 following the recommendations of the Waterhouse Report and through the Care Standards Act 2000 and the Childrens Commissioner of Wales Act 2001. The Commissioner is the first childrens ombudsman to be established within the United Kingdom. It is also the first time in this country and possibly, the world, that children have been formally involved in the appointment process of such a public sector officer. Space forbids detailed discussion of this office save to say that the Commissioners remit includes considering and making representations to the Welsh Assembly about any matter affecting the rights or welfare of children in Wales. More specifically, the Commissioner has the power to review and monitor the operation of arrangements for dealing inter alia with complaints and advocacy for children. He also has power to examine the cases of individual children, including children of the exercise, or proposed exercise, by the Assembly of any function including the making or proposed making of subordinate legislation.
165 166 167 168 169 170 171

Nigel V. LOWE

Professor of Law and Director of the Centre of International Family Law Studies, Cardiff Law School

34

1Viz a clerk must be a barrister or solicitor of at least seven years standing. 2See Practice Direction (Justices: Clerk to Court) [2000] 1 WLR 1886. 3This court can therefore sit in two capacities either as a court of first instance or as an appellate court. 4For further details, see further below. 5Although the Labour Government reneged on its 1997 election manifesto pledge to establish a Judicial Appointments and Training Commission, judicial appoints have become a more open process. For example, judicial vacancies, including those in the High Court, are now advertised. See the discussion inter alia in Walker and Walkers English Legal System (8thedn, edited by R. Ward) 211-212, Slapper and Kelly The English Legal System (5th edn) 204 et seq, and Smith and Bailey: The Modern English Legal System (3rd edn by Bailey and Gunn), ch 4. 6According to the Lord Chancellors Departments Memorandum on Judicial Appointments Procedures (1995), High Court Bench appointments were normally made from Queens Counsel who had been in practice for 20 to 30 years. 7By Supreme Court is meant the High Court of Justice, Court of Appeal and Crown Court. 8Namely, a person who has had a right of audience for all proceedings in the High Court within the meaning of the Courts and Legal Services Act 1990, s 71(3). Circuit judges appointees must have had a 10 year county court qualification. 9E.g. a recorder, who are part-time judges of the Crown Court, and who are appointed on a temporary basis, or a deputy High Court judge which again is a part-time appointment. 10The normal retirement age of a judge of the Supreme Court (excluding Circuit judges and recorders) is 70. 11As of April 2001, for example, no woman has been appointed to the House of Lords. There were only two women in the Court of Appeal, 8 out of 105 were High Court Judges, 44 out of 569 were Circuit Judges, and 67 out of 419 were District Judges. Ethnic minority judges are even rarer. See the discussion by Slapper and Kelly, op cit, at 208. 12Justice of the Peace Act 1997, s 5. 13Cf District Judges (Magistrates Courts) (formerly stipendiary magistrates) who must be barristers or solicitors of at least seven years standing. 14Justice of the Peace Act 1997, s 6. For a discussion of the selection process, see e.g. Slapper and Kelly, op cit, 224-230 and Smith and Bailey, op cit, 194201. 15Employment Rights Act 1996, s 50. 16Justice of the Peace Act 1997, s 10. 35

17See Smith and Bailey, op cit, at 195. 18Upon which age, justices (save those who hold or have held high judicial office when the retirement age is 75) are placed on a supplemental list which debars them from acting as a justice save to authenticate signatures etc: Justice of the Peace Act 1997, s 7. 19Ie it has been the requirement since 1953. See now the Justice of the Peace Act 1997, s 64. Justices are now required both to attend a course of basic training and Refresher Training. 20It began with voluntary attendance at a series of conferences and judicial seminars organised by the Lord Chief Justice and the Lord Chancellors Office see Smith and Bailey, op cit, at 238. 21Following the Report of a Working Party, chaired by Budge LJ, viz Judicial Studies and Information HMSO, 1978). 22There is also an Ethnic Minority Advisory Committee. 23See Slapper and Kelly, op cit, at 213. 24See Slapper and Kelly, op cit, at pp 213-214. 25See generally Slapper and Kelly, ibid, ch 11 and Smith and Bailey, op cit, ch 3. 26Following the Courts and Legal Services Act 1990. 27See e.g. White, Carr and Lowe Children Act in Practice (3rd edn) para 4.15. 28The Law Society 2002. 29But note the requirements concerning disclosure of evidence to the other party under the process known as discovery discussed below. 30See the Family Law Act 1996, Part IV. 31Viz those not related to any other proceedings such as divorce. Applications are made under the Children Act 1989. Note, however, that the High Court has a special power to deal with cases under its wardship and inherent jurisdictions. 32See currently the Adoption Act 1976 which will be replaced by the Adoption and Children Act 2002 when it comes into force. 33See the Matrimonial and Family Proceedings Act 1984, ss 33 and 34. In appropriate instances, cases can be transferred to the High Court. 34See respectively the Married Womens Property Act 1882 and the Family Law Act 1986, ss 55, 56 and 63. 35See the Child Abduction and Custody Act 1985, s 10. 36

362002 Cm 5551. 37See, generally, Lowe and Douglas Bromleys Family Law (9th edn) pp 10 et seq. 38For an up-to-date list see www.lcd.gov.uk. At the time of writing it has been announced that a fifth woman is to become a Family Division Judge with effect from October 2003. 39See the Matrimonial and Family Proceedings Act 1984, ss 33 and 34, and the Children (Allocation of Proceedings) Order 1991, Art 2. 40See, generally, the Children (Allocation of Proceedings) Order 1991 and Practice Direction: Family Proceedings (Allocation to Judiciary) Directions 1999 [1999] 2 FLR 799 and Lord Chancellors Direction: Family Proceedings (Allocation to Judiciary) (Amendment) Directions 2002) [2002] 2 FLR 692. 41See, e.g. Harris and Scanlon The Children Act 1989, A Procedural Handbook (1995) 2nd edn, para 10.10. 42See the Presidents Direction Adoption proceedings A New Approach reproduced in Clarke Hall and Morrison on Children at 3 [6010]. 43Children Act 1989, s 92(1). 44See Family Proceedings (Constitution) Rules 1991 and Family Proceedings Courts (Constitution) (Metropolitan Area) Rules 1991. 45For the definition of which see the Magistrates Courts Act 1980, s 65. 46See White, Carr and Lowe, op cit, at para 4.12. 47Before 2000, legal aid had been administered by the Legal Aid Board. 48See the Access to Justice Act 1999 and the Community Legal Service (Financial) Regulations 2000. The only exception to the means and merits requirements is for applicants under the 1980 Hague Abduction Convention or the 1980 European Custody Convention, see reg 3(1) of the 2000 Regulations. 49For a discussion of the scheme see, e.g. Slapper and Kelly, op cit, at 12.1.4. 50Under s 7 of the 1989 Act. This power is especially useful to ensure the co-ordination of the private law proceedings with ongoing local authority child abuse investigations, see Re A and B (Minors)(No.2) [1995] 1 FLR 351 at 368-369. 51There is no power, however, to order a local authority to instruct a child psychiatrist to prepare a report for the court, see Re K (Contact: Psychiatrist Report) [1995] 2 FLR 432. 52Facility to transfer a divorce case from the county court to the High Court and visa versa is provided by ss 38 and 39 of the Matrimonial and Family Proceedings Act 1984. 37

53See, e.g. the Family Law Act 1986, which aims to prevent conflicts arising within the different UK legal systems, which gives primary jurisdiction to the court that is hearing a matrimonial cause. 54See the discussion, above, on the introduction to this section. 55S 39 of the Matrimonial and Family Proceedings Act 1984. 56See, e.g. the Married Womens Property Act 1882. 57Viz under the Children (Allocation of Proceedings) Order 1991, arts 8 and 12. 58See Practice Direction [1993] 1 All ER 920. 59Practice Note [1996] 2 FLR 111. 60Re D (Abduction: Acquiescence) [1998] 2 FLR 335 at 345. 61See the Child Abduction and Custody Act 1985. 62See the statistics quoted earlier. 63Supreme Court 1981, s 71. For further details, see Rayden on Divorce (17th edn) at 3.7. 64A good example are child abduction cases. Big money divorce cases are also likely to be heard in London. 65The children cases arising out of the so-called Cleveland crisis in Middlesborough were all heard in Leeds, for example. 66See, e.g. Slapper and Kelly, op cit, at 96. 67For a full list of divorce county courts and centres see, respectively, (divorce county courts) the Children (Allocation of Proceedings) Order 1991 Schs 2 and 3 (family proceedings and care centres) and Practice Direction: Adoption Proceedings A New Approach), (2002) reproduced in Clarke Hall and Morrison at 3 [6010] (adoption centres). 68In Oxfordshire County Council v M [1994] 1 FLR 175 at 184. 69[1996] 1 FLR 731 at 743. See also the comments in Cretneys Mason and Bailey Harris Principles of Family Law (7th edn) 19-006. 70See An Introduction to the Children Act 1989 (HMSO, 1990) para 1.51. 71See respectively the Children Act 1989, s 11 and the Family Proceedings Rules 1991, r 4.14(2). 72Children Act 1989, s 10(1)(b). However, parties should be warned by the court of its intention of so doing and be given the opportunity of making submissions, see 38

e.g. Croydon LBC v A [1992] Fam 169 and Devon County Council v S [1992] Fam 176. 73Note that a similar managerial role will be placed in the court in adoption proceedings by the Adoption and Children Act 2002 (not yet implemented). 74Family Proceedings Rules 1991, r 2.61 B (applications for financial relief) and r 4.14 and 4.17 and Practice Direction [1995] 1 FLR 456 (childrens cases). 75See Practice Note: Case Management [1995] WLR 332, which stresses the importance of reducing the cost and delay in civil litigation. 76Family Proceedings Rules 1991, r 4.14(2). See also the Handbook of Best Practice in Children Act Cases. 77Family Proceedings Rules 1991, r 4.18(1). 78See e.g. Re G (Minors)(Expert Witnesses) [1994] 2 FLR 291 and Practice Direction (Case Management) [1995] 1 FLR 456. 79See Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181. 80The President of the Family Divisions Ancillary Advice Group: Best Practice Guide for Instructing a Single Joint Expert [2003] 1 FLR 573. 81See Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 and particularly Re B (a child: non accidental injury) [2002] EWCA Civ 752, [2002] 3 FCR 85. 82Civil cases are generally subject to the Civil Procedure Rules 1998 but these do not generally apply to family proceedings (CPR 1998, Pt 2, p 2) but do, for example, govern appeals and applications to enforce decisions. 83See Practice Direction [1993] 1 All ER 820. 84See Adoption Proceedings A New Approach (2001). 85See respectively Practice Direction [2000] 2 FLR 429, Practice Direction [2000] 1 FLR 536 and Practice Direction [1994] 1 All ER 155. 86Under Matrimonial Causes Act 1973, s 22. 87Insofar as these are permitted, according to the Child Support Act 1991. 88For example, there is no right of appeal in relation to an order for interim periodical payments made under Sch 1 to the Children Act 1989, see s 94(3) of the 1989 Act. Note it is possible to challenge a magistrates courts decision by way of judicial review but this should not be done in preference to an appeal. It is also possible to bring an action under the Human Rights Act 1998, ss 7 and 8 in respect of court acts claimed to be incompatible with a Convention right under the European Convention on Human Rights.

39

89Ie where orders are made by consent. 90See CPR 1998, r 52.3. The exceptions are appeals against committal orders, refunds to grant habeas corpus, and secure accommodation orders. 91E.g. that it involves a matter of general public importance about a matter of statutory interpretation or where the contentious issue is one on which the trial judge is bound by precedent of the Court of Appeal or House of Lords: Administration of Justice Act 1969, s 12. 92See e.g. Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230 and Re O (Costs: Liability of Legal Aid Board) [1997] 1 FLR 465. 93See e.g. G v G [1985] 1 WLR 647 and Re B (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 FLR 196 - which establish that there are no special rules for children cases in this respect. 94See Ladd v Marshall [1954] 1 WLR 1489, which might apply less rigorously in children cases, see Re G (A Minor)(Care: Evidence) [1994] 2 FLR 785, 797. 95Though, technically to be enforceable, orders made in the higher courts have to be injunctive in form, see e.g. Re P (Minors)(Custody Order: Penal Notice) [1990] 1 WLR 613. 96For a general discussion of contempt see Borrie and Lowes The Law of Contempt (3rd edn. by Lowe and Sufrin), ch 14. 97Ormrod LJ in Ansah v Ansah [1977] Fam 138 at 143. But note also Hale v Turner [2000] 1 WLR 2377, per Hale LJ. 98See the Contempt of Court Act 1981, s 14. 99Viz the Magistrates Courts Act 1980, s 63(3). 100Viz the order must be clear, a penal notice warning of the consequences if the order is not complied with must have been added to the order, and the breach must be proved beyond all reasonable doubt. 101[1997] 1 FLR 533. 102See the Maintenance Enforcement Act 1991, and the Attachment of Earnings Act 1971, discussed inter alia by Lowe and Douglas Bromleys Family Law (9th edn) 772775 and 859-861. 103See the Booth report Delay in Public Law Children Cases (1995) and the Scoping Study on Delay in Children Act Cases (2002). 104See White, Carr and Lowe: The Children Act in Practice (3rd edn) 14.4 et seq. 105Wermuth v Wermuth (No. 2) [2002] EWCA Civ 50, [2003] 1 FLR 1029.

40

106Ibid at para [34]. 107For an excellent discussion of the development and practice of mediation in England and Wales, see Butterworths Family Law Service, Vol 1, ch 5, upon which this section heavily relies. 108In fact in 1971 courts were encouraged to refer a children case to a court welfare officer when it was considered that conciliation might be helpful, see Practice Direction [1971] 1 All ER 984. 109Report of the Committee on One Parent Families (Cmnd 5629, 1974). 110Discussed further below. 111Viz Financial Dispute resolution incorporated into the Family Proceedings Rules by the Family Proceedings (Amendment No. 2) Rules 1997 and see Practice Direction [1997] 2 FLR 304. See further below. 112Viz s 29 which required those who wished to seek public funding to attend a meeting with a mediator for the suitability of a mediation to be assessed. 113See further below. Note also that a new umbrella body, the UK College of Family Mediators, was created in 1996. 114Section 29 itself was implemented in Bristol and Northampton in 1998 as part of a rolling programme of implementation. It applied nationwide at the end of 2000, but has now been replaced by a new regime under the Access to Justice Act 1999, see further below. 115See the Law Societys Protocol, Part 1, para 1.9. 116See Code Procedures C27-C29 of the Funding Code. 117The exemptions are contained in C29 and cover such events as emergencies, reasonable fear of domestic violence, the client is a respondent to proceedings already in existence, there is no mediator available or where the mediator is satisfied that mediation is not suitable. For a discussion of these criteria see Butterworths Family Law Service [1A [2592] et seq. 118Ie funding for the conduct of litigation. 119See Butterworths Family Law Service at 1A [2554]. 120See Funding Code, paras 2.1 and 2.2. 121See Funding Code, Section 12 C43 Duties of the Solicitor 143.2 (vi)(c). As Butterworths Family Law Service, ibid, at 1A[2612] points out, there is no proviso to this requirement that the offer should be considered reasonable. 122See Re D (Minors)(Conciliation: Privilege) [1993] Fam 231.

41

123See Practice Direction [1982] 1 WLR 1420. 124See now Practice Direction [1992] 1 WLR 147. 125According to the Practice Direction, above, where an application is made for a prohibited steps or specific issue orders, references to conciliation can only be made if the applicant so requests. The National Standards for Probation Service Family Court Welfare work states that mediation should be undertaken only at the request of the court and when the parties have given their informed consent. 126This reflects the long held belief that the reporting and mediation roles of reporters are quite distinct and to some extent incompatible, see Scott v Scott [1986] 2 FLR 320, Re H (Conciliation: Welfare Reports) [1986] 1 FLR 476, the Booth Committees Report on Matrimonial Causes Procedure (1985), para 4.63. 127The only exception relates to child abuse, see Re D (Minors)(Conciliation: Privilege) [1993] Fam 231, referred to above. 128Looking to the future, Mediation and the ground for divorce (Cm 2424, 1993) para 7.13. 129The author was fortunate to hear an address by Tim Amos at the 4th German-British Judicial Conference held in Trier, Germany, in September 2002 entitled Financial Dispute Resolution in England and Wales on which this section heavily relies. 130These were first introduced in 1996, see Family Proceedings (Amendment No. 2) Rules 1997 and Practice Direction [1997] 2 FLR 304. 131Family Proceedings Rules 1991 r 2.61D (2)(c) and 2.61E (6). 132It should be noted that under English law all agreements are embodied in a court order, i.e. reliance is not generally placed on the law of contract to enforce agreements between the parties. 133Tim Amos, op cit. 134The UK signed the Convention on 16 December 1991. 135See generally British Airways v Laker Airways [1985] AC 58 and more specifically Re P (Children Act: Diplomatic Immunity) [1998] 1 FLR 624 at 628 and R v Central Criminal Court ex p S [1999] 1 FLR 480 at 487. 136Per Ward LJ in Re P (A Minor)(Residence Order: Childs Welfare) [2000] Fam 15 at 42. 137For a detailed assessment see e.g. Lowe and Murch Childrens participation in the family justice system translating principles into practice (2001) 13 CFLQ 159, on which this section is heavily based. 138As Butler-Sloss said in the pre-Children Act decision, Re P (A Minor) (Education) [1992] 1 FLR 316 at 321: The courts over the last few years, have become increasingly aware of the importance of listening to the views of older 42

children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want, but paying proper respect to older children who are of an age and maturity to make their minds up as to what they think is best for them. 139Children Act 1989, s 1(4)(a). 140Viz under s 8, namely, residence, contact, specific issue or prohibited steps orders. 141Sch 23 para 31. Cretney has commented, (see Defining the Limits of State Intervention in Children and the Law (Hull University Press, 1988), (ed D. Freestone, 1988, 58 at 61), it was with an astonishing stroke of tactical boldness that the crucial change was contained in a Schedule entitled Minor Amendments. 142Douglas, Murch, Scanlan and Perry Safeguarding Childrens Welfare in NonContentious Divorce: Towards a New Conception of Legal Process? (2000) 63 MLR 177 at 183-184. As the authors point out, contrary to the Law Commissions recommendation, under r 2.39 of the Family Proceedings Rules 1991, this scrutiny is not carried out until the district judge has determined that the petition is made out. 143Hansard, HL Debs Vol 573, Col 1076 (June 1996). 144See the Lord Chancellors announcement on 16 January 2001 HL Official Report col WA 126. Note that s 1 of the 1996 Act is in force. 145Under the Family Proceedings Rules 1991, r 9.5, see for example, Re A (Contact: Separate Representation) [2001] 1 FLR 715, CA. But cf Re W (Contact: Joining Child As Party)[2001] EWCA Civ 1830, [2003] 1 FLR 681 in which it was held wrong to make a 7 year old a party. As the court said the normal course is to request a court reporters report and only if that was inadequate to order separate representation for the child. Fortin, The HRAs impact on litigation involving children and their families [1999] 12 CFLQ 237, has commented that it is questionable whether the existing system denying legal representation to mature children in private law disputes over their upbringing can continue without challenge under the European Convention on Human Rights. Normally, where a child is made a party to proceedings the court will appoint the Official Solicitor (subject to his consent) or some other proper person to represent the child: Family Proceedings Rules 1991, r 9.5. However, if the child is of sufficient understanding he may defend proceedings without a next friend: r 9.2A, discussed further below. 146This power to order a report is conferred by s 7 of the Children Act. 147Formerly known as welfare officers. The change of designation came into effect on 1 April 2001 following the establishment of the new Children and Family Court Advisory and Support Service (CAFCASS) which amalgamated the former court welfare service with the former guardian ad litem service under the Criminal Justice and Court Services Act 2000. 148They are nevertheless not now regarded as officers of the court, see Re M (Disclosure: Children and Family Reporter) [2002] EWCA Civ 1199, [2002] 2 FLR 893. Reports should only be called for where there is alive and in practice contested issue before the court, see White, Carr and Lowe, op cit, at 10.12 et seq. 43

149HMSO, 1994. 150See e.g. Re V (Residence: Review) [1995] 2 FLR 1010. 151See B v B (Minors)(Interviewing and Listing Arrangements) [1994] 2 FLR 489 at 496, per Wall J. 152Certainly it looks questionable in the light of the European Court of Human Rights decision in Sahin v Germany (Application No. 30943/96) [2002] 1 FLR 119. This decision, however, has been appealed by Germany. In any event the English position has been the subject of criticism, see inter alia C. Lyon Childrens Participation in Private Law Proceedings in M. Thorpe and E. Clarke (eds) No Fault or Flaw: The Future of the Family Law Act 1996 67-69. 153Before the Act wardship offered a limited means by which children could initiate legal proceedings, see N. Lowe and R. White Wards of Court (2nd end, Barry Rose, 1986) para 3-4. 154Practice Direction (applications by children: leave) [1993] 1 All ER 820. 155Viz under s 10(8) of the 1989 Act. As established by the leading decision, Re S (A Minor)(Independent Representation) [1993] 2 FLR 437 there is no hard and fast rule in determining whether a child is of sufficient age and understanding. As Sir Thomas Bingham MR put it: Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. His Lordship added, however, the following caveat. Where any sound judgment in these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the childs understanding is sufficient. See also Re N (Contact: Minor Seeking Leave To Defend and Removal of Guardian) [2003] 1 FLR 652, in which Coleridge J said that the essence of the test was whether or not the child concerned had sufficient understanding to participate as a party. 156Family Proceedings Rules 1991, r 9.2A, for the application of which, see Re T (A Minor)(Child: Representation) [1994] Fam 49, and Re N, supra. 157See the Adoption of Children Act 1926, s 3(b). This was subsequently re-enacted in the Adoption Acts of 1950, s 5(1)(b) and 1958, s 7(2). 158Under the Adoption and Children Act 2002 (not yet in force) s 1(4) there will be a similar obligation. 159See the Adoption Rules 1984, r 15(2), as amended by the Adoption Amendment Rules 2001 (SI 2001/819). It might be noted that it was only from April 2001 that children could be made parties to adoption proceedings in the county court. 160Originally provided for by s 2(3) of the Adoption of Children (Scotland) Act 1930, it is currently required by s 6(2) of the Adoption (Scotland) Act 1978. 161Under the proposed Adoption Bill, 1996 cl 41(7) it would not have been possible to make an adoption order in relation to a child aged 12 or over unless the court is satisfied that the child consents or is incapable of giving such consent. However, the 44

proposal was dropped and no such provision appears in the Adoption and Children Act 2002. 162Which is arguably in breach of Art 4. 163C. Piper Ascertaining the wishes and feelings of the child: a requirement honoured largely in the breach?"[1997] Fam Law 796. 164Viz J. Hunt and J. Lawson Crossing the boundaries the views of practitioners of Family Court Welfare and Guardian ad Litem work on the proposal to create a unified court welfare service (National Council for Family Proceedings, 1999) at 104. 165Lost in Care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county councils of Gwynedd and Clwyd since 1974 (HC 201, 2000). 166Though there have been moves to establish Commissioners both in Northern Ireland and Scotland. There is also a London Childrens Rights Commissioner established by the Major of London. There is also a Minister for Children in the Westminster Parliament. 167See the Childrens Commissioner for Wales (Appointment) Regulations 2001 (SI 2001/3121-W 99). 168For more detail see G. Douglas and K. Hollingsworth Creating a Childrens Champion for Wales (2002) 65 MLR 58. 169Care Standards Act 2000, s 75A. It might also be noted that the Regulations provide that in exercising his functions the Commissioner should have regard to the UN Convention on the Rights of the Child which is the first such reference in UK legislation. 170Ibid, s 74. 171Ibid, s 72B.

45

S-ar putea să vă placă și