Acting to stop harm: the FCA and Appointed Representatives
These were the words of The Honourable Mr Justice Coleridge in his call for a “root and branch overhaul” of family law legislation and procedure in England and Wales to ensure that “even the more difficult cases can be solved in a much more sophisticated and modern way”.
His recent speech to family lawyers was clear in its message; family law reaches far and wide and affects almost all of us at some point in our lives. According to Coleridge, the proportion of couples who divorce within 15 years of marriage now stands at around 42% and only 7% of 15 year olds have their unmarried parents still living together. The increasing significance of family law in the private lives of ordinary people is one reason Sir Paul Coleridge considers that the law and its application must do better and reflect the changes in society.
His message is important and timely but one we are accustomed to hearing. Coleridge calls for a host of improvements including full legislative approval of pre-nuptial agreements, the death of The Matrimonial Causes Act 1973, introduction of legislation to protect deserving cohabitees and the end of reliance upon implied trusts for private companies.
Sir Paul Coleridge’s retirement from full-time judging with effect from next spring marks the handing over of the baton to family lawyers. According to Coleridge, it is practitioners who must be the front runners in the pursuit for a more “streamlined and user friendly environment”.
With mounting pressure on the court service, including financial cutbacks reducing the quantity of court staff and legal aid cuts increasing the number of litigants in person - users of the family law system are faced with delays, increased costs and at the end of a long journey, little assurance of judicial predictability. This call for modification could not have come at a more appropriate time. But is there appetite for such radical change?
The use of out of court Alternative Dispute Resolution (ADR) can take us part of the way. Exploring and promoting ADR as a matter of course is something that all practitioners should be doing to help reduce the “bloodshed, time and cost”, but Coleridge calls for more than this. He desires new legislation “informed by 45 years of experience and social change.”
Surely the answer is that “Government simply has to grasp the nettle and get on with it”? Coleridge says not. His way forward is through the formation of an independent non-political commission to take a fresh look and stimulate activity. Practitioners shall eventually need political will behind them to facilitate the sorts of changes to law and procedure that are required to reflect the fact that they are no longer “fit for purpose”. However, stage one is for there to be “proper, reasoned, possibly research based, grown-up discussion” to demonstrate that the dinosaurs really have had their day.
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