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03 NOV 2011

Sandra Davis' Week: Parallel Universe

Sandra DavisI can't imagine many policy makers will read more than three of the 225 pages of the Family Justice Review Committee's final report.

Anyone in government remotely interested in the issue of family justice will open their copy of the report at the section headed "Financial implications and implementation" that starts on page 179. Call me a cynic, but once the three pages that follow have been read the report will be passed to HM Department of Recycling.

The financial section starts promisingly:

"This package of proposals will, if implemented, substantially change family justice in England and Wales, delivering real improvements for those who use the system as well as those who work in it."

Having read the rest of the report, I agree. The Committee's recommendations are wide ranging and thoughtful. That said, I would have gone much further than many of the authors' recommendations particularly in relation to alternative dispute resolution. It remains a mystery to me why "mediation" is perceived to be the panacea to all of the ills of the family justice system. Early therapeutic intervention has a far greater prospect of successfully resolving disputes than either mediation or litigation. Nevertheless one can't fault the thoroughness of the call for evidence, the interim report, consultation and final report.

I fear though that the following paragraph of the report fundamentally undermines the policy value of the entire body of work undertaken by the Committee and everyone who responded to the consultation:

"We were asked in our terms of reference to take account of value for money and resource considerations in making any recommendations. The lack of data and unit costs has made it impossible to consider the costs and benefits to the system as a whole. Since our interim report was published the Ministry of Justice (MoJ) and Department for Education (DfE) have continued work to produce unit costs. There are still major gaps and these will need to be addressed by government in considering the next steps. Even then some of our recommendations will require more detailed specification taking account of the timing of implementation."

The report contains 134 separate recommendations. I imagine that many of those recommendations will be cost neutral or may in fact lead to cost savings. However two of the recommendations involve significant expenditure: the introduction of a new IT system and reversing the proposed legal aid reforms, both of which are fundamental to the proposed reforms.

In the absence of any data against which all 134 the recommendations can be stress tested it is inconceivable that government will implement them wholesale.

What we will then be left with is exactly what the Law Society feared in its response to the Consultation:

"The proposals are ambitious and they deserve resourcing accordingly: half measures will not succeed, and the opportunity will be lost. It is better that reform is planned and implemented properly, then change introduced piecemeal and quickly."

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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