There should be a fundamental re-balancing of the family court towards a problem-solving court, engaging the therapeutic and other support systems that so many families, children and parents need, Sir James Munby has said.
The president of the family division, who retires next month, addressed the University of Liverpool and stated that “family courts ought to be, but for the most part are not, ‘problem-solving’ courts”. The current fragmentation of the family court’s processes contributes to delay, added cost and stress for all concerned.
“Unlike the civil courts, which essentially look only to the past, the family court (like the criminal court) looks both to the past and to the future: to the past to help determine what should happen in the future,” said Sir James Munby. “That is all to the good, but, too much of the time, the exercise is still limited to determining what is the appropriate disposal for the case: what, for example, is to happen to the child in future.”
“In the family court, where the welfare of the child is, by statute, the court’s paramount concern, it is all too easy to focus on the child’s future, without paying adequate attention to what it is that has brought about the court’s involvement in the first place. And, especially with younger children, that has to do almost exclusively with the parent, or the family as a whole, and not the child.”
He outlined that very often the families and children who find themselves before the courts are the victims of multiple difficulties and deprivations including economic, social, educational, employment, housing and health.
While these families should be treated holistically, far too little time is spent identifying the underlying problems and then setting out to find a solution.
Munby highlighted the success of the Family Drug and Alcohol Courts which has resulted in more children being reunified with parents if the case has gone through FDAC than through the normal family court, and there is significantly less subsequent breakdown. Furthermore, it saves the local authorities who participate significant sums of money, £2.30 for every £1 spent.
“I believe that this points the way forward to what in my view is so urgently required: a fundamental re-balancing of the family court towards what ought to be its true role as a problem-solving court, engaging the therapeutic and other support systems that so many families, children and parents need if they are to achieve justice – both justice from the court and social justice,” said Munby.
He said this was more pertinent whether the family court or a criminal court is struggling to deal with a disturbed teenager. In these uniquely complex cases, the children have themselves become part of the problem, so a problem-solving court “must grapple with the underlying problems and difficulties” not just of the parent but also of the child. A problem-solving court should be for the whole family – “in short, a re-vamped family court with an enhanced jurisdiction”.
However, he warned that an effective problem-solving court needs to be able to access the necessary tools, including access to the therapeutic and other support systems for the families involved.
Furthermore, while ideally families should be treated holistically, too often this is made more difficult, or even impossible, because responsibility is spread across too many agencies and too many budgets.
Even within the ambit of local authority responsibility, there are difficulties created by the ways in which local authorities organise their services and budgets, he explained. These difficulties are further exacerbated by the frequent lack of sufficient resources, made more acute by the current age of public sector austerity.
“The family court is, still, sadly lacking in the resources – for example, adequate and effective special measures, the provision of intermediaries – which are essential if the vulnerable, whether children or adults, are to be enabled to participate properly in the process,” he said, adding that a lack of resources is “seriously hampering the work of the family courts”.
“We have somehow to create a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be. More narrowly, dealing holistically with the family court’s traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victim,” concluded Sir James Munby.
The Rt Hon Sir Andrew McFarlane has been appointed as the President of the Family Division and will take over from Munby when he retires in July.