COURT APPROACHES: ENGLAND AND AUSTRALIA

Different Court Approaches in England and Wales and Australia

Different Court Approaches in England and Wales and Australia

Introduction

… the attempt to create a specialist jurisdiction has created something of an identity crisis. Is the Family Court a family organisation with some of the trappings of a court or a court with jurisdiction in family matters?

This was a question put by Richard Ingleby in his 1993 textbook, Family Law and Society (p. 97), about the Family Court of Australia. It is also a useful starting point from which to consider some of the current problems facing family courts in England and Wales with regard to post-separation parenting disputes. As in Australia, our courts struggle to balance their adjudication functions with a drive toward alternative dispute resolution, and are subject to the social policy of the day. The history of the family court welfare service in England and Wales reveals a continuous conflict between legal and social approaches to settling family disputes. Looking at this history can inform our understanding of the causes of present confusion in policy and practice.

This article will set out the current problem in England and Wales in balancing law and social work in private law matters, relate this to the development of the social work functions of the family justice system by the court welfare service, and finally make some comparisons with contemporaneous changes in Australia.

Background

Ingleby was offering a diagnosis of the dilemma faced by the specialist Family Court of Australia, which had been founded by the Family Law Act 1975 as 'a helping court'.

This had aroused envy in proponents of the 1974 Finer Committee (DHSS 1974) recommendation for a Family Court for England and Wales, which did not come to fruition. However, as Ingleby's 1993 comment suggests, the helping court with its internal family counselling service and its emphasis on alternative dispute resolution, had not, 20 years later, proved any more satisfactory to the public or politicians than the England and Wales family justice system. Now, dramatic new changes in Australia have once again prompted interest here - but will the new Australian vision prove to be more realistic than that of 30 years ago? 1

In our jurisdiction, it appeared that this question had been answered by consensus in 2007, with the social work model in the ascendant. However, difficulties began to emerge just a few weeks before the proposed introduction in April 2008 of a 'new model' for Cafcass, the Private Law Pathway of 'extended dispute resolution'.

The current problem in England and Wales

The Public Law Outline was a judicial initiative and has, of course, been piloted and now implemented. It is mentioned here only because of the way it was presented within Cafcass in tandem with the Private Law Pathway. Both were conveyed as progressive ways of working with the courts to provide a better service for children and families.

In 2009, the Pathway is still shown on the Cafcass website as 'the Cafcass national model for April 2008', but ...