Is the family law 'adversarial' approach out of date?
Sep 29, 2012
The 4th update from Mr Justice Ryder regarding 'The Family Justice Modernisation Programme' was published recently and a couple of comments within the update were of more than a passing interest to those of us who want to see radical change in the system.
The first was the acknowledgement by the senior judge who is tasked to modernise family law that there are "primary legislative changes proposed by Government which include the concept of shared parenting and amendments to section 8 of the 1989 Act". This perhaps shows there are now discussions taking place behind the scenes between the government and the judiciary regarding shared parenting and some in authority are looking at this seriously. As Mr Justice Ryder went on to say he will return to this later in the year when the Governments intentions are clear.
The second comment of interest was regarding public law proceedings and the changes proposed to the courts approach to expert evidence and interim care orders. In essence what is referred to as a quasi-inquisitorial approach would in parts (at least) be a "full inquisitorial approach with the court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly".
Back in private family law there are some of us who believe that the 'adversarial' approach is simply out of date and has been for quite some time, that a move to a "full inquisitorial approach" is long overdue in family law. However, it is vital to understand that no system is effective in looking after the interests of children without shared parenting being the starting point, also having shared parenting promoted by the government, judiciary and society as a whole. Without this basic understanding of what children generally need after the separation of their parents, then any system is hopelessly flawed and will be ineffective in looking after children's welfare.
The reality in most courts today is that judges do not have the luxury of just sitting there listening to advocates on both sides battle it out for their client's and s/he decides on the respective arguments put forward. Judges generally are more proactive and investigatory these days, they need to be more inquisitorial in order to try and make informed decisions promptly.
It is a shambles in many respects as the courts try to work in an adversarial system in an inquisitorial manner many times. There are a growing number of litigant in persons in the courts, some because the access to Legal Aid is being restricted and far more because parents are becoming aware they can access the family law system themselves without the cost and restrictions of using lawyers. The adversarial approach is not workable for these parents in particular.
For an adversarial system to work well and fairly for parties, they must have equal access to legal representatives and be able to put forward their cases properly. With the increasing number of LIPs who are unable to put forward their case coherently and properly the courts are being forced into a quasi-inquisitorial role which is haphazard at best. Many times LIPs are in court against the other parent who has legal representation, to use the adversarial process in these cases is unjust even when the judge makes allowances for the inequality of the parties' abilities to present their case.
This is not to say that lawyers are always successful for their clients, far from it but the LIP who has no experienced assistance (lawyer or McKenzie Friend) will find it difficult and frustrating. Plus, the whole process in adversarial family law is extended unnecessarily and the cost is magnified hugely for represented parties especially (or the tax payer if legal aid is footing the bill).
An adversarial system being used in family law will generally have representatives of parents trying to outwit and outsmart the other side rather than actually seeking the truth and the best outcome for the children of the family. This can be particularly distasteful in unequal matches e.g. represented party vs. LIP
It is nonsense to stick to an adversarial system in circumstances where parents and the court are trying to (sometimes perversely and damagingly) get the best result for their children. Pitting parents against each other in battles over this and that, with or without their champion barristers is counter-productive and usually only intensifies the bitterness and anger.
In an inquisitorial system judges would be able to inquire far more freely about the issues that matter regarding children's welfare earlier and more acutely. Side issues important to the parents perhaps could be put into context by the court to the parents sooner, focussing them on what really matters for their children.
In an inquisitorial family law system the judge would be tasked to find out the truth through investigation and then make decisions in accordance with legislation. In an adversarial family law system the judge is supposed to be neutral and allow the parties to put their evidence forward as best they can and the court will make the decisions. However, when we are talking about children and their families and the mass inequalities of representation and the lack of ability of many parties to put their cases in front of the court properly, the judge must in order to get the best result for children take an inquisitorial role immediately and effectively, within an inquisitorial family law system.
Cases in my experience are many times crying out for a fully inquisitorial judge to be the main player from the start, to lead the parents rather than wait on the side-lines playing the referee for hearing after hearing while the parties skirmish and deepen the rift between them. Plenty of judges are playing more of a leading role but nowhere near enough across the family justice system, because the system is not set up for them to do this easily.
To be effective and accepted, an inquisitorial family system would have to be in an environment where shared parenting is expected to be the starting point and decisions made are based on both parents' and the children's individual circumstances.