Family Justice

The family justice system is the legal machinery which applies to the regulation of disputes concerning the family or between members of the family and the state. It encompasses both the court system and wider ‘dispute resolution’ services such as lawyer negotiation, mediation and the provision of advice.

It may be divided into two broad domains

  • ‘private family law’ – which is concerned with how the law determines the status, finances and property allocation and child caring arrangements of families, both when relationships are formed and when they are ended, such as in cases of divorce or cohabitation breakdown
  • ‘public family law’ – which covers situations when the state intervenes directly to protect vulnerable family members, such as in cases of child neglect or abuse

Members of the Network have undertaken a wide variety of studies examining how the family justice system works in practice and, in particular, how those who make use of it evaluate their experience.

On 3rd November 2011 the Family Justice Review panel published their final report containing recommendations to improve public and private law family proceedings.

Having contributed to the evidence given to the Review, the Network on Family Regulation and Society have responded to some of the media concerns surrounding the key issues in the proposed reforms. Please see the Family Justice Review - Response (v2) document for more information.

The government response to the Family Justice Review was published on the 6th February 2012 and a Written Ministerial Statement from the Lord Chancellor and Secretary of State for Justice on this includes the statement that "The Government accepts the need to clarify and restore public confidence by a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests."

The Network’s Liz Trinder, writing in The Guardian on the 7th February 2012 has warned of the dangers of legislating on shared parenting which come through clearly from the research evidence.

Special Issue on ‘New Families; New Governance: Voices heard and unheard, Journal of Social Welfare and Family Law, Volume 36, Issue 4, 2014: 355-437.

Anne Barlow

  • 2015 with Hunter R, Smithson J, Ewing J, Paths to Justice in Divorce Cases in England and Wales, in Maclean M, Eekelaar J, Bastard B (eds) Delivering Family Justice in the 21st Century, Oxford: Hart Publishing Ltd, 145-162
  • 2015 with Smithson J, Hunter R, Ewing J, The "child's best interests" as an argumentative resource in family mediation sessions, Discourse Studies: an interdisciplinary journal for the study of text and talk, vol. 17, no. 4, SAGE Publications, 1-15

Gillian Douglas

  • 1999 with M Murch et al Safeguarding Children’s Welfare in Uncontentious Divorce, Lord Chancellor’s Department Research Series 7/99 274 pp (funded by the Lord Chancellor’s Department); see also
  • 2000 with M Murch, L Scanlan and A Perry, ‘Safeguarding children’s welfare in non-contentious divorce: towards a new conception of the legal process?’ 63 Modern Law Review 177-196
  • 2002 with M Murch, 'Taking Account of Children's Needs in Divorce: A Study of Family Solicitors' Responses to New Policy and Practice Initiatives' 14 Child and Family Law Quarterly 57-75 (funded by Cardiff Law School)
  • 2004 with R Moorhead and M Sefton The Advice Needs of Lone Parents, One-Parent Families 104 pp (funded by the Nuffield Foundation); see also
  • 2005 with R Moorhead, ‘Providing advice for lone parents: from parent to citizen?’ 17 Child and Family Law Quarterly 55-74
  • 2006 with M Murch et al, Research into the Operation of Rule 9.5 of the Family Proceedings Rules 1991 Final Report to the Department for Constitutional Affairs Department for Constitutional Affairs 257 pp (funded by the Department for Constitutional Affairs); see also
  • 2006 with M Murch et al, ‘Separate Representation Report’ [2006] Fam Law 385-388
  • 2006 'The Separate Representation of Children - in whose best interests?' in The Rt Hon Lord Justice Thorpe and R Budden (eds) Durable Solutions: The collected papers of the 2005 Dartington Hall Conference (Editors), Family Law, 13-22
  • 2011, Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts with N Doe, S Gilliat-Ray, R Sandberg and A Khan, Cardiff Law School 48 pp (funded by the AHRC)

Julie Doughty

  • 2010 The Children Act 1989: amendments to the legislation 1989-2009,
 5 Journal of Children's Services  7-16

Abstract: This article, following the structure of the Children Act 1989, outlines the legislative amendments that have been made to the Act since it was first implemented in 1991. It describes the most significant changes to the original wording of the Act, with brief summaries of the relevant background and references to comment by leading figures in law and social work. The review begins with the welfare principle and covers: parental responsibility; contact orders; residence orders; family assistance orders; risk assessments; private law provisions; local authority duties to children in need; care orders; and child protection. The author concludes that the majority of the amendments have arisen through increased recognition of the impact of domestic violence on children, campaigning by the fathers' rights movements and the economic pressures on local authorities that have prevented the provision of adequate services to children in need.

  • 2009 Identity crisis in the family courts? Different approaches in England and Wales and Australia,
 31 Journal of Social welfare and Family law 231-243

Abstract: This article compares the role of family courts in England and Wales with those of Australia. The role now undertaken by the Children and Family Court Advisory and Support Service (Cafcass) has been welcomed by the courts, but there has been continuous tension between the legal and social welfare function of the family justice system. Cafcass has recently tried to remedy this by diverting cases away from formal hearings into a conflict resolution process, but this raises issues of legitimacy and has not been accepted by lawyers or the general public. Recent reforms in Australia, by structurally dividing public and private law, may have achieved a workable consensus that prioritises non-legal resolution over adjudication, which the author argues should be worth considering as a solution in England and Wales.

  • 2008 From court missionaries to conflict resolution: a century of family court welfare,
 20 Child and Family Law Quarterly 131-154

Abstract: Family courts have utilised social work services to assist in making decisions in private law disputes since the late nineteenth century. During this period, the initial role of the court missionary developed into the family court welfare officer, and subsequently into the family court adviser. Although the family justice system accepts the need for social work advice to the courts, the relationship between law and social science ahs been subject to tension, which is still evident in unresolved conflicts about the boundaries between adjudication and welfare. This article relates the evolution of family court welfare to new challenges by tracing the history of probation and CAFCASS officers' involvement in family proceedings from the origins of probation service to the present. It explores developments in both law and practice.

Liz Trinder

Abstract: The Parent Information Programmes (PIP) is the first available programme for parents involved in litigation about child contact and residence in England. The programme is a Contact Activity, introduced by the Children and Adoption Act 2006 as a tool for courts to facilitate contact. This evaluation was designed to identify the actual and future potential of the Parenting Information Programme as an effective and value for money intervention for parents with disputes over parenting arrangements, with a particular goal to inform the deliberations of the Family Justice Review.

  • 2007 with J Kellett The longer-term outcomes of in-court conciliation. London: Ministry of Justice.
  • 2007 with J Kellett Fairness, efficiency and effectiveness in court-based dispute resolution schemes in England. 21 International Journal of Law Policy and the Family  323-340.

Abstract: In recent years in England there has been renewed emphasis on court-based dispute resolution schemes (in-court conciliation) as a means to avoid the use of contested hearings in litigated contact cases. These alternative dispute resolution mechanisms are believed to be less likely to fuel parental conflict, more likely to result in an outcome tailored to individual circumstances and to be accepted by the parties as well as reducing delay and costs. Previous research has, however, raised questions about whether rapid negotiations in a highly pressurized court environment can produce a fair, safe or sustainable solution. In this paper, we draw upon a recently completed research study to explore the fairness, effi ciency and effectiveness of dispute resolution schemes in litigated contact cases. Like others we raise concerns about some of the limitations of in-court conciliation. We conclude by arguing for the development of a more facilitative or educational-therapeutic approach to litigated contact cases.

with Hunter R, Smithson J, Ewing J, Paths to Justice in Divorce Cases in England and Wales, in Maclean M, Eekelaar J, Bastard B (eds) Delivering Family Justice in the 21st Century, Oxford: Hart Publishing Ltd, 2015, 145-162