1. “Everyone has the right for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

There is clearly a role for the state in protection of children and other vulnerable people, and that will always be a priority for the English family courts. For children, this is most often found in the exercise of court powers in relation to care proceedings, but it can also extend to wardship proceedings (now being used in relation to children who are under threat from FGM (female genital mutilation) or being removed to live in Syria or other troubled countries). In an age of increasing individual longevity, the work of the Office of the Public Guardian is likely to increase, as is the work of those lawyers who specialise in law for the elderly, including lasting powers of attorney and wills.

Private sector

But in the private sector, things are changing. Divorce itself does not really trouble the courts, as so few are defended. With the advent of same-sex marriage in March 2014 (but not in Northern Ireland), civil partnerships may become less common, and the law on dissolution is anyway very similar to that for divorce. Processes are changing to become more administrative, and use less judicial time. Cohabitation, of course, initially requires no involvement from the state at all, and the breakdown of cohabitation is essentially a private thing (save where the state becomes involved, eg in welfare benefits) unless there are disputes and then mainly property and children law is involved. In 2014 there were 18.6m families in the UK. Of these, 12.5m were married couples, but cohabiting couple families grew by 29.7% between 2004 and 2014. There are 2m lone parents with dependent children.

Traditionally there were two types of private family work in court, either financial disputes following the separation of couples (usually married), or the resolution of disputes regarding care of children. Inevitably, some court cases cause headlines in the media. This leads to consideration of the use of family courts.

Judicial discretion

Under Family Proceedings Rules 2010 as amended, r 27.10 gives any judge discretion to direct that a hearing should be in public. One High Court judge in particular, Holman J has been in the vanguard of the move to transparency for hearings involving adults. In a string of judgments, from Luckwell v Limata[2014] EWHC 502 (Fam), through Gray v Work [2015] EWHC 834 (Fam), [2015] All ER (D) 302 (Mar) to Fields v Fields [2015] EWHC 1670 (Fam), [2015] All ER (D) 163 (Jun)—the recent decision involving the Russian former model and the grand piano in Manhattan—the ins and outs of family life and family breakdown have been aired in public. The judgments in the courts increasingly emphasise the damage done by the legal costs (over £1m in the case of Mr and Mrs Fields) and the use of court time taken by such bitter disputes. While some courts are able to offer a speedy and controlled timetable, other courts have insufficient resources to deal promptly, so that a fully contested case might take a year or two to reach final hearing. During that time, the spouses’ lives are effectively on hold, businesses are affected, and other third parties suffer at least part of the strain felt by the main litigants.

Private dispute resolution

The role of the family courts in resolving disputes between separating couples is likely to be superseded, increasingly, by private dispute resolution. Information about mediation is now a part of the application process for a court hearing on financial issues (and in most children matters), and any solicitor not talking to new clients about alternative methods of dispute resolution is likely to face a negligence claim sooner or later. Solicitors and barristers have always negotiated in family law cases, and continue to do so even within the court process, of course. Private judging, in the form of arbitration, gives the choice of process (including complete privacy) and a greater degreee of control of costs. The Institute of Family Law Arbitrators has a clearly defined process, which is endorsed by the courts in S v S [2014] EWHC 7 (Fam), [2014] All ER (D) 63 (Jan) as leading to a binding court order in almost all cases.

Children proceedings

In children proceedings, while the courts bear in mind very much the need for transparency, it is seldom in the interests of children that applications for orders under the Child Arrangements Programme are considered in public or open court. In the recent case involving Rebecca Minnock who ran away with her three-year-old son Ethan Williams, when the court was about to order that Ethan live with his father Roger Williams, the first two years of hearings were in private. It was only after Minnock ran away, and in the light of the very considerable press, media and public interest, that HHJ Wildblood QC delivered five judgments in public. Those were mainly related to the committal proceedings arising out of breach of collection orders, aimed at recovering Ethan as quickly as possible. Minnock’s friends and family disobeyed those orders. Practice Direction: Committal for Contempt of Court – Open Court (26 March 2015) provides very clearly that all such hearings, and subsequent judgements, should be in open court. If for particular reasons, a judge decides to have such a hearing in private, the court will notify the Press Association’s CopyDirect service of the fact of the committal and give enough information for the media to make representations if so wished.

Micromanagement for parents

Not least because of the need for help once the legal process has finished, there are an increasing number of services, such as that provided by the Tavistock Centre for Couple Relationships Parents as Partners, to help parents to micromanage the problems of parenting after separation, and to work together as co-parents. But for some parents, a court order remains a necessary part of safeguarding the welfare of their child. As recognised in the recent Nuffield Foundation/Universities of Warwick and Reading report How do County Courts share the care of children between parents (June 2015) there is a role for the courts, as a last resort, and there should be if the risk of serious harm is to be minimised by scrutiny of courts and other professionals. In June 2014 the Children and Family Court Advisory Service reported in May 2015 a total of 2,880 new private cases, a 34% increase on May 2014 levels. The number of cases with many hearings (and some children are the subject of dispute for many years) shows that the court system is creaking and not working as well as it can.

Post-LASPO

The decline in the role of the family courts in resolving family disputes will have been hastened by the withdrawal of legal aid from most family law cases, after Legal Aid, Sentencing and Punishment of Offenders Act 2012 which has been found by the Justice Select committee to have “harmed access to justice”. The courts simply cannot cope with the extra work involved where the litigants are in person. The Law Society has recently published a guide for solicitors where the other party is unrepresented, but increasingly neither party has a lawyer. A judicial attempt to provide legal services paid for by HMCTS has been overturned by the Court of Appeal in re K & H (Children) [2015] EWCA Civ 543, [2015] All ER (D) 230 (May), so the individuals will either plod on, aided if possible by the court staff, the judge and pro bono work by lawyers.

The new landscape is coming into the foreground very quickly. Private resolution of financial disputes will become increasingly common: for reasons of privacy, cost and flexibility of process. A more therapeutic view of the promotion of the welfare of children whose parents disagree about their upbringing was enshrined in the Children Act 1989, and courts expect to work closely with other professionals in order to discharge the duty to respect private and family life.

How much of the change is driven by the need to cut public expenditure is the subject of another article, of course.

View the original article in the New Law Journal here.