Family law system in England and Wales

The family law system is in this article used to refer to the laws, procedures and rules governing family matters as well as the authorities, agencies and groups which participate in or influence the outcome of private disputes or social decisions involving family law. Such a view of family law may be regarded as assisting the understanding of the context in which the law works and to indicate the policy areas where improvements can be made.

The UK is made up of three jurisdictions: Scotland, Northern Ireland, and England and Wales. Each has quite different systems of family law and courts. This article concerns only England and Wales.

Types of family law

Family law encompasses divorce, adoption, wardship, child abduction and parental responsibility. It can either be public law or private law. Family law cases are heard in both County Courts and Family Proceedings Courts (Magistrates Court), both of which operate under codes of Family Procedure Rules. There is also a specialist division of the High Court of Justice, the Family Division which hears family law cases.

Criticism

Court judgments not open to public scrutiny

A full analysis of the facts of any particular case heard in Court is made difficult by the "in camera" rule that prohibits any reporting [http://www.guardian.co.uk/child/story/0,7369,1180238,00.html] of family law cases in England and Wales. The Court of Appeal, however allows the reporting of certain cases, provided the family remains anonymous. It is argued by some, including campaigners for 'fathers rights', that, although it is important to preserve the anonymity of all people involved in a case, there would be better protection against abuses if family court judgments could be published in the same anonymised fashion as Appeal Court judgments are; this is allowed in Scotland, which has different family laws. See [http://www.courtservice.gov.uk/judgmentsfiles/j2253/father&mother.htm "Father and Mother Appeal Court Judgment"] for an example of an English Appeal Court judgment and for some insight into what can go wrong and eventually be put right in one case. Although statistics are published about cases that pass through the courts, these in their nature cannot answer claims that abuses of the system are not identified and that there are effectively no quality controls. Those who wish to see this rule lifted claim that justice must be seen to be done, and this is not applied to family law cases. It is said, rightly or wrongly, that a rule which was put in place to respect the sensibilities of children involved in distressing circumstances may have become a cloak behind which considerable inhumanity can go unnoticed by society at large.

Lawyers' vested interests

One claim is that " [http://www.guardian.co.uk/uk_news/story/0,3604,1149787,00.html early intervention] " is a far more effective approach, and that shared residency rather than sole orders should be the presumed outcome of any agreement by consent or court order. Judicially led initiatives, such as have occurred in parts of Florida [http://www.floridafamilylaw.com/parent.htm] and elsewhere, have demonstrated that where clear guidance is provided at the outset by the court about what the expected outcome will be, then this results in less hostility and therefore in a reduced workload for the courts. Some fathers' rights campaigners claim that vested interests in the legal profession are politically operative to preserve lawyers' revenue streams from this type of business. Judicial powers already exist to endeavour to ensure that continuity is maintained in relationships between children and fathers. "Interim contact orders" can be issued before the establishment of a routine that excludes the father from the children's lives.

Adversarial court system

The current adversarial system, such as exists in England and Wales, is said by some to encourage each parent to identify their fears, real or imagined, about what will affect their children now that the parents have separated. Some hold that when a parent expresses these fears about the other parent in this circumstance, even when fears are unfounded, they can nevertheless be treated as fact. Courts tend to be very particular about taking account of mothers' expressed fears, and then the father has somehow to demonstrate that he presents no risk to the children, and that the advantages that he will confer on them are real.

Fathers' rights proponents say that in such circumstances, the case can easily become a witch-hunt. Any aggression that the father may have manifested in the past is claimed to be treated as justification for limiting his involvement in his children's upbringing. If he is inexperienced at parenthood, perhaps due to value judgments about his background, or because this is a first child, the result may be that he is initially not trusted to provide basic care. In one case, for example, a father was restricted to visiting his child in a contact centre for six years, seeing his son for two hours a week without missing a single occasion, because of the mother's fears that he would otherwise abduct the child abroad. Even when he is able to demonstrate that he presents no risk, the mere fact of the mother expressing imagined fears can be used to argue that her fears affect the child and that the father's involvement should be restricted or eliminated [http://www.guardian.co.uk/uk_news/story/0,3604,961940,00.html] .

Most fathers' rights campaigners have had experiences that follow a similar pattern, and they are aiming that the law should be changed to prevent situations such as theirs arising.

It is further claimed the whole idea of adversarial court cases to resolve family disputes has led to a sub-culture considered by people who have encountered it to be completely absurd. A typical outcome might involve a father who is a teacher, and therefore trusted to teach a class of children, but who is nevertheless not allowed to see his own children.

Fathers' rights campaigners question the assumption that it can ever be legitimate for the state to collude in disrupting a loving and natural relationship between a father and his children. Others, of course, would regard such use of language as question-begging. In a controversial passage, Bob Geldof has written eloquently and emotively on this subject:

:I cannot even say the words. A huge emptiness would well in my stomach, a deep loathing for those who would deign to tell me they would ALLOW me ACCESS to my children—those I loved above all, those I created, those who gave meaning to everything I did, those that were the very best of us two and the absolute physical manifestation of our once blinding love. Who the fuck are they that they should ALLOW anything? REASONABLE CONTACT!!! Is the law mad? Am I a criminal? An ABSENT parent. A RESIDENT/NON-RESIDENT parent. This Lawspeak which you all speak so fluently, so unthinkingly, so hurtfully, must go.

Delay

Bob Geldof has written on this subject::"Upon separation, the system is slow and delay occurs immediately. This allows the status quo to be established. As the process labours on it becomes impossible to alter. This is unfair. It is nearly always possible for the resident parent (let’s face it, the girl) to establish a pattern. It is then deemed in the child’s interest not to break this routine. But at the cost of losing sight and touch of their father, we must really examine all our assumptions without fear. Then we can move to building a more equitable system benefiting all equally."quoted from "The Real Love that Dare Not Speak its Name: A Sometimes Coherent Rant"

Fathers' rights campaigners point to cases where flimsy or dishonest arguments have been allowed by courts to result in unnecessarily long separations occurring between fathers and children during and after lengthy periods of court hearings. It is argued that effort would be better spent dealing properly with the trauma of the parents' initial separation and allowing the children to maintain their relationships with both parents continuously.

tatutory Instruments

Statutory Instruments contain the rules that lay down court procedure. They frequently cross-reference each other, though many refer to the [http://www.opsi.gov.uk/si/si1991/Uksi_19911247_en_1.htm original 1991 rules] , which came in with the 1989 Children Act. The list below contains many of the Statutory instruments that have a bearing on family law, which are available from the Office of Public Sector Information.
* [http://www.opsi.gov.uk/si/si1991/Uksi_19911247_en_1.htm The Family Proceedings Rules 1991] Statutory Instrument 1991 No. 1247 (L.20)
* [http://www.opsi.gov.uk/si/si1991/Uksi_19911991_en_1.htm The Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991] Statutory Instrument 1991 No. 1991 (L.32)
* [http://www.opsi.gov.uk/si/si1992/Uksi_19920456_en_1.htm The Family Proceedings (Amendment) Rules 1992] Statutory Instrument 1992 No. 456 (L.1)
* [http://www.opsi.gov.uk/si/si1993/Uksi_19930627_en_1.htm The Family Proceedings Courts (Child Support Act 1991) Rules 1993] Statutory Instrument 1993 No. 627 (L. 8)
* [http://www.opsi.gov.uk/si/si1994/Uksi_19942890_en_1.htm The Family Proceedings (Amendment) (No. 3) Rules 1994] Statutory Instrument 1994 No. 2890 (L.17)
* [http://www.opsi.gov.uk/si/si1997/19970788.htm The Family Proceedings Fees (Amendment) Order 1997] Statutory Instrument 1997 No. 788 (L. 18)
* [http://www.opsi.gov.uk/si/si1999/19991012.htm The Family Proceedings (Miscellaneous Amendments) Rules 1999] Statutory Instrument 1999 No. 1012 (L. 9)
* [http://www.opsi.gov.uk/si/si1999/19993491.htm The Family Proceedings (Amendment No. 2) Rules 1999] Statutory Instrument 1999 No. 3491 (L. 28)
* [http://www.opsi.gov.uk/si/si2001/20010615.htm The Magistrates' Courts (Transfer of Justices' Clerks' Functions) (Miscellaneous Amendments) Rules 2001] Statutory Instrument 2001 No. 615
* [http://www.opsi.gov.uk/si/si2001/20010778.htm The Family Proceedings Courts (Family Law Act 1986) Rules 2001] Statutory Instrument 2001 No. 778 (L. 14)
* [http://www.opsi.gov.uk/si/si2001/20010821.htm The Family Proceedings (Amendment) Rules 2001] Statutory Instrument 2001 No. 821 (L. 18)
* [http://www.opsi.gov.uk/si/si2001/20011255.htm The Legal Aid in Family Proceedings (Remuneration) (Amendment No. 2) Regulations 2001] Statutory Instrument 2001 No. 1255
* [http://www.opsi.gov.uk/si/si2003/20030184.htm The Family Proceedings (Amendment) Rules 2003] Statutory Instrument 2003 No. 184 (L. 2)
* [http://www.opsi.gov.uk/si/si2004/20042035.htm The Courts Act 2003 (Consequential Amendments) Order 2004] Statutory Instrument 2004 No. 2035
* [http://www.opsi.gov.uk/si/si2003/20032839.htm The Family Proceedings (Amendment No. 2) Rules 2003] Statutory Instrument 2003 No. 2839 (L. 35)
* [http://www.opsi.gov.uk/si/si2003/20030645.htm The Family Proceedings Fees (Amendment) Order 2003] Statutory Instrument 2003 No. 645 (L. 12)
* [http://www.opsi.gov.uk/si/si2003/20030719.htm The Family Proceedings Fees (Amendment No. 2) Order 2003] Statutory Instrument 2003 No. 719 (L. 19)
* [http://www.opsi.gov.uk/si/si2004/20043114.htm The Family Proceedings Fees Order 2004] Statutory Instrument 2004 No. 3114 (L. 21)
* [http://www.opsi.gov.uk/si/si2005/20050184.htm The Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2005] Statutory Instrument 2005 No. 184
* [http://www.opsi.gov.uk/si/si2005/20050264.htm The Family Proceedings (Amendment) Rules 2005] Statutory Instrument 2005 No. 264
* [http://www.opsi.gov.uk/si/si2005/20050467.htm The Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2005] Statutory Instrument 2005 No. 467
* [http://www.opsi.gov.uk/si/si2005/20050559.htm The Family Proceedings (Amendment No. 3) Rules 2005] Statutory Instrument 2005 No. 559 (L. 11)
* [http://www.opsi.gov.uk/si/si2005/20051976.htm The Family Proceedings (Amendment No 4) Rules 2005] Statutory Instrument 2005 No. 1976 (L. 18 )
* [http://www.opsi.gov.uk/si/si2005/20051977.htm The Family Proceedings Courts (Miscellaneous Amendments) Rules 2005] Statutory Instrument 2005 No. 1977 (L. 19)
* [http://www.opsi.gov.uk/si/si2005/20052795.htm The Family Procedure (Adoption) Rules 2005] Statutory Instrument 2005 No. 2795 (L. 22)
* [http://www.opsi.gov.uk/si/si2005/20052921.htm The Family Proceedings (Civil Partnership: Staying of Proceedings) Rules 2005] Statutory Instrument 2005 No. 2921 (L. 25)
* [http://www.opsi.gov.uk/si/si2005/20052922.htm The Family Proceedings (Amendment) (No. 5) Rules 2005] Statutory Instrument 2005 No. 2922 (L. 26)
* [http://www.opsi.gov.uk/si/si2005/20053336.htm The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005] Statutory Instrument 2005 No. 3336
* [http://www.opsi.gov.uk/si/si2005/uksi_20053443_en.pdf The Family Proceedings Fees (Amendment No. 2) Order 2005] Statutory Instrument 2005 No. 3443 (L.29)

Case Law

Decisions of the Court of Appeal may be issued orally, in which case no report is usually made available to the public. Important or difficult decisions, however, are published on the internet both by the Court Service and by the [http://www.bailii.org British and Irish Legal Information Institute] . The cases cited here provide examples.
* [http://www.courtservice.gov.uk/judgmentsfiles/j2466/f-v-m.htm] Munby judgment: F v M Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam)
* [http://www.courtservice.gov.uk/judgmentsfiles/j2253/father&mother.htm] Wall judgment: A v A (Shared Residence, 4th February 2004)
* [http://forthesakeofthechildren.blog-city.com/read/633004.htm] Bracewell judgment: V v V (Change of Residence, 20th April 2004)
* [http://www.familieslink.co.uk/pages/law_ukcases_dvd.htm] Butler-Sloss: D v D (Shared Residence Order, 20 November 2000)
* [http://www.bailii.org/ew/cases/EWCA/Civ/2003/592.html] Re F (2003) EWCA Civ 592, 18 March 2003. (Case of shared residency, father in Hampshire, mother moved to Edinburgh)
* Miller v Miller (Short marriage, no children, rich husband)
* Pagliowska v Pagliowski (Runaway costs)

Frequently asked questions

Family law in England & Wales - FAQ