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Family courts or family law reform — which should come first?

Published online by Cambridge University Press:  02 January 2018

Brenda Hoggett
Brenda Hoggett*
Affiliation:
University of Manchester
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Extract

Why should a Law Commissioner be interested in family courts? Family courts were an item in the Commission’s first programme but the Commission has made no proposals on the subject. A working party was set up in 1971 and seemed on the point of producing a working paper when it was learnt that the Finer Committee intended, not merely to make some general observations, but to lay down broad principles and work them out in some detail. The Commission therefore suspended operations indefinitely. Since then, it has taken the view that the issue must be left to the responsible government departments, who have recently begun their own consideration of the subject.

Type
Research Article
Information
Legal Studies , Volume 6 , Issue 1 , March 1986 , pp. 1 - 17
Copyright
Copyright © Society of Legal Scholars 1986

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References

1. Law Com No 1 (1965).

2. See Seventh Annual Report, Law Com No 50 (1972), para 46.

3. Report of the Committee on One-Parent Families, Cmnd 5629 (1974), sections 13 and 14.

4. Ninth Annual Report, Law Com No 64 (1974), para 31.

5. Fourteenth Annual Report, Law Com No 97 (1980), para 2.27.

6. The Lord Chancellor's Department produced some proposals relating to the High Court and county courts in 1983 but an interdepartmental review of the whole concept was initiated by that department and the Home Office in 1984. A Consultation Paper is expected early in 1986.

7. The major turning point was the Divorce Reform Act 1969 which, together with the Matrimonial Proceedings and Property Act 1970 and the Law Reform (Miscellaneous Provisions) Act 1970, severely reduced the link between matrimonial remedies and matrimonial conduct; the transition is described in ‘Families and the Law’, in Rapoport, Fogarty and Rapoport (eds), Families in Britain (1982); and in ‘Ends and Means—The Utility of Marriage as a Legal Institution’, in Eekelaar and Katz (eds), Marriage and Cohabitation in Contemporary Societies (1980).

8. Cf Domestic Violence and Matrimonial Proceedings Act 1976, ss 1 and 2, with Domestic Proceedings and Magistrates' Courts Act 1978, ss 16–18.

9. See Law Commission, Twentieth Annual Report, Law Corn No 155 (1986) para 1.29.

10. Family Law Sub-committee, A Better Way Out (1979), Parts III to VIII; see also Standing Committee on Family Law, A Better Way out Reviewed (1982).

11. Standing Committee on Family Law, A Family Court, Consultation Paper (1985).

12. Home Office, The Child, The Family and the Young Offender, Cmnd 2742 (1965); cf Children in Trouble, Cmnd 3601 (1968).

13. Juvenile Courts, ACC Working Party Report (1984), especially paras 6.2–5.3.

14. Children Still in Trouble (1985), especially paras 30–36.

15. Family Courts, A Discussion Document (1984).

16. Session 1983–84. HC 360; see para 119.

17. See Children in Care: Government Response to the Second Report from the Social Services Committee, Session 1983–84, Cmnd 9298 (1984).

18. The Law Commission has initiated its own review of the private law relating to the upbringing of children which will include all the custody jurisdictions but not adoption; see Nineteenth Annual Report, Law Com No 140 (1985), para 2.28.

19. Session 83–84 HC 360, paras 83–93.

20. DHSS, Review of Child Care LAW (‘RCCL’) (1985).

21. Matrimonial Causes Act 1967, s I (1); Matrimonial and Family Proceedings Act 1974, s 33 (not yet in forcc).

22. Child Care Act 1980, s 2(1).

23. Ibid, s 8(2): for ‘parent’ is substituted any person having custody by court order; the other parent is thus deprived of rights and obligations under the Act.

24. Section 3(1)(b)(iii).

25. Section 3(5).

26. Section 6.

27. Section 21(1)(a).

28. Section 12B.

29. Section 12C(4).

30. Section 5(4)(b).

31. Ibid.

32. Children Act 1975, s 100 lays down the primary rules but other county courts may be prescribed by Rules of Court; see CCR Ord 47, r 7.

33. They could have chosen the Muncaster county court because it had granted the parents' divorce (CCR 1984, Ord 47 r 7).

34. In Southwark LB v H [1985] FLR 989, the magistrates' refusal to adjourn a parent's access application until after adoption proceedings was upheld on appeal to the High Court; judicial review was held inappropriate in R v Slough JJ, ex p B [1985] FLR 384.

35. Children Act 1975, s 12(2)(b) and (a) respectively.

36. Matrimonial Causes Act 1973, s 42(1); orders may be made ‘at any time’ after a divorce.

37. Child Care Act 1980, s 21A.

38. Section 21A(5).

39. Part II of the 1975 Act came into force on 1 December 1985.

40. The court's powers to allocate custody are not limited to parents or spouses and any person may seek leave to intervene in the suit (see Chetwynd u Chetwynd (1865) 4 Sw & Tr 154); some may intervene without leave: MCR 1977, r 92(3).

41. RCCI., R219 and R220.

42. RCCI., R221

43. MCR 1977, r 115.

44. MCR 1977, r 95.

45. Child Care Act 1980, ss 7 and 12F.

46. Children Act 1975, s 103; Guardians Ad Litem and Reporting Officers (Panels) Regulations 1983, SI 1983 1908.

47. Magistrates' Courts (Children and Young Persons) Rules 1970, Part IIIA.

48. The child is a party to adoption proceedings in the High Court: Adoption Rules 1984, r 15(2)(k).

49. The appointment of a guardian ad litem is mandatory where a parent is unwilling to agree, but otherwise discretionary: Adoption Rules 1984, r 18(1) and (2).

50. Child Care Act 1980, s 21A(6).

51. RSC (Amendment No 2) 1985, 1985 SI No 846, inserts Part 111 into Ord 90; new r 16 provides that defendants should include the child's mother and father, or guardian, whether or not a local authority has parental rights, and any local authority having the child in voluntary or compulsory care or in whose area the child resides. The County Court (Amendment No 2) Rules 1985, SI 1985/1269 provide for the RSC to apply with minor amendments in the county courts, see particular n 60 infra.

52. Children Act 1975, s 40; see Custodianship (Reports) Regulations 1985, SI 1985/792 and Custodianship (Reports) (Amendment) Regulations 1985, SI 1985/1494, and RSC Ord 90, r 24(1) and (2).

53. Children Act 1975, s 39.

54. RSC Ord 90, r 18 applies MCR, r 11 5 to custodianship, but provides that if the child is separately represented in the High Court he shall be made a party.

55. In reaching any decision relating to a child's adoption, courts and adoption agencies must give first consideration to the child's welfare, but must also seek to ascertain and give due consideration to his wishes and feelings (Children Act 1975, s 3); the same duty rests on local authorities when reaching any decision about a child in care (Child Care Act 1980, s 18(1)); courts deciding issues of custody and upbringing, however, must give ‘first and paramount’ consideration to the child's welfare (Guardianship of Minors Act 1971, s I).

56. DHSS supported project on the Representation of the Child in Civil Courts.

57. Matrimonial Causes Act 1973, s 43(5)(a); Re Y (A Minor) (Child in Care: Access) [1976] Fam 125.

58. With a view to an order committing him to care, either under Family Law Reform Act 1969, s 7(2) or the court's inherent powers (see Re CB (A Minor) [1981] 1 WLR 379).

59. A v Liverpool City Council [1982] AC 363; W v Hertfordshire County Council [1985] 2 WLR 892.

60. See Secure Accommodation (No 2) Regulations 1983, Sch, and M v Lambeth BC [1985] FLR 187 and M v Lambeth BC (No 2) [1985] FLR 371.

61. Eg on 31 March 1983, at least 34,900 children were in local authority care as a result of committals in civil proceedings; some 4,600 such orders were made during the year: DHSS Report, Children in Care in England and Wales, March 1983 (1985).

62. King, in Childhood, Welfare and Justice (1981), argues that judges may be too ready to accord spurious scientific validity to medical and social work judgments for which, as Sutton argues in the same book, there is as yet no firm theoretical or empirical basis; in False Trails and Future Possibilities in the Search for Justice for Pard and Families in Care Cases, Warwick Law Working Papers Vol 6 No 3 (1983), King further argues that the French system of specialist children's judges with wide inquisitorial powers may be more effective in this respect.

63. Eg a Mental Health Review Tribunal should not rely on the opinion of its medical member without alerting the applicant to points which have not been put before it: see R v Mental Health Review Tribunal, ex p Clatworthy [1985] 3 All ER 699 at 704.

64. Children and Young Persons Act 1969, s1 (2), Child Care Act 1980, s 3(1) and (6). See also Re C (A Minor) (Justices' Decision: Review) (1979) 2 FLR62 at 65: ‘When the necessary facts have been found the court of course, acts in accordance with the universal rule that its decision must be governed by the paramount interest of the child’.

65. Family Law Reform Act 1969, s 7(2); Matrimonial Causes Act 1973, s 43(1); this test also applies in other matrimonial and custody proceedings and adoption.

66. Re CB (A Minor) [1981] 1 WLR 379.

67. As Kindersley V-C observed in Re Curtis (1859) 28 LJ Ch 458:‘… I suspect that the peace of half the families in this country would be disturbed by applications shewing, or attempting to shew, what, I am afraid, might be shewn in a great many cases, that it was most for the interest or the children that they should be removed from the custody both of the father and of the mother …’.

68. See Session 83–84, HC 360, para 116.

69. RCCL, para 2.13, chapter 15, and R116.

70. See eg Dingwall, Eekelaar and Murray, The Protection of Children (1983), at pp 226–228; Re C (A Minor) (Justices' Decision: Review) (1979) 2 FLR 62 at 66; and Session 83–84, HC 360, para 81.

71. RCCL, chapter 16.

72. RCCL also recommended that juvenile and domestic courts should have concurrent jurisdiction in care cases; see R215 and R216.

73. Matrimonial Causes Act 1973, s 43(5); Family Law Reform Act 1969, s 7(3).

74. Re S (An Infant) [1967] 1 All ER 202 at 209 per Cross J; see Surrey County Council v W (1982) 3 FLR 167 for how this should operate in care cases; emergency action is excepted.

75. W v Nottinghamshire County Council, (1985) Times, 16 November 1985.

76. RCCL, paras 2.22 to 2.26 and 9.8 to 9.12.

77. Social Work (Scotland) Act 1968, Part III: see also Martin, Fox and Murray, Children Out of Court (1981).

78. Report of the Committee on Children and Young Persons (Chairman Lord Kilhrandon). Cmnd 2306 (1964).

79. Finer Report, at para 4.285.

80. Matrimonial Causes Act 1973, s 27.

81. Domestic Proceedings and Magistrates' Courts Act 1978, ss 1, 6 or 7.

82. Domestic Violence and Matrimonial Proceedings Act 1976, s 1.

83. Domestic Proceedings and Magistrates' Courts Act 1978, s 16(2).

84. 1976 Act supra, or Matrimonial Homes Act 1983, ss 1 or 9.

85. Richards v Richards 1984] AC 174.

86. 1978 Act supra, s 16(3).

87. 1973 Act supra, s 42(2); 1978 Act supra, s 8(1) and (2).

88. ‘The Legal Background to the Family Court’ [1966] B-J Crim 139, at p 149.

89. Reform of the Grounds of Divorce-The Field of Choice, Council 3123, Law Com No 6 (1966), para 120(1).

90. See Atkins and Hoggett, Women and the Law (1984), p 152.

91. Para 4.285.

92. Para 4.288.

93. See Home Office, Marriage Matters, a consultative document issued by a working party on marriage guidance (1979), chapter VIIA.

94. ‘Bargaining in the Shadow of the Law: The Case of Divorce’ [1979] CLP 65.

95. Justice and Welfare in Divorce (1980), p 223.

96. Mortlock, The Inside of Divorce (1972), p 34 (emphasis supplied).

97. See Report of the Matrimonial Causes Procedure Committee (Chairman: The Hon Mrs Justice Booth) (1985), para 1.1.

98. Ibid, para 2.9.

99. Para 4.10.

100. Paras 4.14 and 4.26.

101. Para 4.53, and see paras 4.33 to 4.40 and 4.50 to 4.52.

102. Paras 4.54 to 4.59.

103. Para 4.125.

104. ‘Divorce Bargaining: The Limits on Private Ordering’, in Eekelaar and Katz, The Resolution of Family Conflict (1984).

105. See eg Davy-Chiesman v Davy-Chiesman [1984] 2 WLR 291.

106. See eg Thurlow v Thurlow [1976] Fam 32, where a wife was divorced for behaviour which was the result of an incurable neurological disorder.

107. Matrimonial Causes Act 1973, s 33A and MCR 1977, r 76A, and Jenkins u Livesy (formerly Jenkins) [1985] AC 424.

108. Matrimonial Causes Act 1973, s 41.

109. See eg Davis, Macleod and Murch, ‘Undefended Divorce: Should Section 41 of the Matrimonial Causes Act 1973 he Repealed?’ (1983) 46 MLR 121 and Maidment, ‘The Matrimonial Causes Act, s 41 and the Children of Divorce: Theoretical and Empirical Considerations’, in Freeman (ed) State, Law and the Family (1984).

110. Op cit 101 above, p 228.

111. ‘Towards a More Humane System of Divorce: Murch and Participant Justice’ (1981) 145 JP 173; see also Questioning the Delegalisation Movement in Family Law: Do we really want a Family Court?, in Eekelaar and Katz, op cit n 110 above.

112. See Booth Report, paras 4.61 to 4.63.

113. And even above those which the parties think best: see Davis, and Bader, ‘In-Court Mediation: The Consumer View’ (1985) 15 Fam Law 42 and 82.

114. See eg Priestley, ‘.Mediation Conferences — The New Zealand Family Court's Alternative to Litigation’, in Erkelaar and Katz, op cit n 110 above.

115. H. A. Finlay, ‘Family Courts — Gimmick or Panacea? (1969) 43 ALJ 602, at 602.