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Family Law

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16 MAY 2006

Commons Family Justice Inquiry Continued

The House of Commons Constitutional Affairs Committee held a one-off evidence session into Family Justice: the operation of the family courts in May 2006. The witnesses were Sir Mark Potter, President of the Family Division, Mr Justice Munby, District Judge (Magistrates Courts) Nicholas Crichton and Justices' Clerk Audrey Damazer. A summary of the evidence dealing with delay and limited resources for family justice is published in June [2006] Fam Law 493.

Children and Adoption Bill

Sir Mark Potter said he hoped the Bill would help the courts enforce orders but that success would depend on the practicalities of the arrangements that were made. He thought that the Bill was important in its emphasis on making orders at an earlier stage such as family assistance orders and directions to CAFCASS to provide monitoring of arrangements made. Sir Mark considered it unfortunate that the court would still not be allowed to order mediation rather than order information about mediation.

Transparency in Family Proceedings

Having studied the conclusions and recommendations of the Select Committee, Sir Mark shared its concern about complaints of secret justice, lack of openness and sometimes bias against fathers. Regarding access, Sir Mark tended towards a solution recently adopted in New Zealand (and already applicable in family proceedings courts here) giving the press the right to attend hearings subject to the courts right to exclude by reference to defined criteria in unusual cases. Sir Mark would restrict the admission of the public to what was broadly called the legitimate interests in the proceedings rather than those simply with a desire to watch. In Mr Justice Munby's opinion, it was indefensible for care proceedings to be heard in private with no access for the media and/or the public. Mr Justice Munby also made clear that he was not suggesting that the media or the public should have an unrestricted right of access in all circumstances to all family cases. District Judge Crichton commented that in his family proceedings court, he allowed all members of the extended family in because it was helpful for them to understand what the difficult issues were and to give support to distressed parties.

Domestic violence and contact

On the question of contact and domestic violence, as recently highlighted in Wall LJ's report on the 29 child homicides (see May [2006] Fam Law 344) Sir Mark Potter said that in a situation where violence might be involved, there should be a risk assessment before orders were made. He would not preclude contact in every case because there was no doubt that a child might have a close and loving relationship with one parent, being ignorant of violence to the other, and there might be no reason to think that it would ever be perpetrated vis-à-vis the child. There had to be great caution in relation to an order and if there were any reason at all to be concerned about the safety of contact then, at best, supervised contact would probably be appropriate.

Compulsory Mediation and the Family Resolutions Pilot

Sir Mark Potter said he would welcome trialling a system of compulsory preliminary meetings with mediators as envisaged by s 31 of the Family Law Act 1996 but that had resource implications which were a substantial inhibiting factor for Government, which had a blinkered view and would not put a bit of money forward in order to save a great deal of money later.

The complete summary is published in July [2006] Fam Law.

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