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Message from the President of the Family Division: Private Law Working Group Report

|Family Court|News
Picture of the President of the Family Division, Sir Andrew McFarlane

President of the Family Division, Sir Andrew McFarlane

Despite the challenging circumstances in which the Family Justice system is currently required to operate as a result of the COVID 19 pandemic, it is both necessary and appropriate to look to the future and to continue to contemplate ways in which the Family Court, and more widely society in general, can best support children and families following parental separation.

In 2018 I invited Mr Justice Stephen Cobb to convene a Private Law Working Group (PrLWG) to review the approach taken to private disputes between parents with respect to the arrangements for their children’s future welfare following a separation. The impetus for this step was essentially two-fold. Firstly, the court was experiencing an upsurge (which has continued) in parents making applications about their children. Secondly, and in any event, there was a body of criticism over the working of the previous attempt to reform this area of our work and a review was therefore clearly necessary.

In July 2019 the PrLWG published its first report and invited responses during a consultation period which ran until the end of September. The consultation exercise was fruitful and provided valuable comment on the direction of travel and the detail of the Group’s thinking. The purpose of the Second Report, which is published today, is to draw together the key themes that were highlighted during consultation and to describe how the Group’s thoughts have developed as a result during the past 6 months.

Alongside the PrLWG’s work, the Ministry of Justice has established a panel to consider the ability of the Family Court to engage with issues of domestic abuse and other serious offences when they arise. The work of this Panel is of importance.  The PrLWG wish to take full account of the MOJ Domestic Abuse Panel’s recommendations and the report published today should not, therefore, be seen as in any way ‘final’. It is, rather, a description of work in progress and will, in time, be followed by a third and probably further reports.

The major message of the work of the PrLWG, as described in this excellent and very full analysis, is that the challenge of dealing with the fallout from many broken parental relationships is one that should be shared by society in general; the PrLWG rightly see a role for local agencies delivering a nationally supported resource for separating families. While there is always a role for a judge or magistrate sitting in a court room, the report re-ignites an important conversation about services for families, and dispute resolution, out of the courtroom.

In reality, of course, difficulties that cause parents to come to court are not always essentially legal matters; they are, very often, the consequences of broken or dysfunctional adult relationships. As this Report advises, public education about the effects of parental conflict, and the work of professionals other than lawyers or judges, will be key to supporting families to receive appropriate assistance and support; while the courts remain important for the determination of disputes particularly those involving harm to children or adults, courts should otherwise be seen as the last, rather than the first, port of call when many disputes arise.

I welcome the publication of this Second Report by the PrLWG and, in doing so, I wish to thank all those who have been involved in its production. It is a document that has much to offer all those who are concerned with this most important aspect of the work of the Family Court and I earnestly hope that it will be widely read and that the proposals that it makes will be taken forward and developed in further discussion.

Sir Andrew McFarlane
President of the Family Division

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