In the United Kingdom, more than four in every ten marriages end in divorce. The breakdown of any marriage is likely to be the source of great sadness. However, when children are involved, the impact of divorce is often deeper and more consequential.
Whilst in a significant number of cases, arrangements as to where a child resides following a divorce, can be made without the intervention of the courts, this cannot always be avoided: causing additional heartache is often par for the course. Alas, far too often, parties face an increasingly inefficient and, at times, unresponsive system, failing to place the emotional and psychological needs of the children at its centre.
I have long held the view that the current system, of utilising magistrates to determine some of these cases, is unfit for purpose. It undermines the values it is supposed to uphold; values of fairness, natural justice, and the well-being of children.
In prosecuting my argument, it is important to understand the approach taken in England and Wales to a significant proportion of child arrangement order cases.
The anchor point in all family law cases involving a child must be that child’s best interests. The focus should be on supporting and promoting a child’s well-being and protecting their future prospects. It is about ensuring a child has a sense of place and belonging: what Sir Roger Scruton would describe as “oikophilia” – a love of home.
Far too frequently, the system achieves the opposite: leaving a child feeling nomadic, confused, and invariably distressed.
The reason for this is because of an inequality in our legal system in disposing of private law family cases. These are cases which determine the level of contact between a child and their parent; cases which have a deep and lasting impact upon any child, shaping their long-term future.
Whilst some of the more serious cases will be heard by a Circuit Judge, or even a High Court Judge, the majority come before the lower courts. Here, cases may be heard before a bench of three magistrates or a District Judge with a family ticket. A District Judge is a qualified lawyer who has undergone rigorous training. In contrast, magistrates are not required to hold any formal legal qualification. Further, whilst they undergo some specific training upon appointment, their training is limited to a few days per year. This is hardly an equality of arms.
Drawing a comparison with the role of magistrates in criminal proceedings, the maximum sentence magistrates can hand down is 12 months’ imprisonment. Sentences beyond this are sent to the Crown Court. This appropriately reflects the gravity of the decision. In comparison, in child arrangement cases, where the stakes could not be higher, decisions about a child’s arrangements until adulthood are frequently made by individuals with no specialist knowledge or training in family law. Whilst magistrates are assisted by a legal advisor, such an advisor does not have to have practised as a barrister, a solicitor, or CILEX lawyer. To the contrary, they must have merely passed the academic stage of qualification. Under the present regime, we are, therefore, delegating this singular, most important decision to a tribunal who have no practical experience of the law in this area.
The system in England and Wales is almost virtually unique in permitting lay magistrates to determine such matters, with most jurisdictions across the world entrusting the decision to a suitably qualified judge. Given the importance of such decisions to a child’s long-term prospects, the practice of magistrates hearing such cases should be abolished. It is an inefficient and unreliable system of dispensing justice in the modern world. It runs the risk of reaching inconsistent decisions of varying and questionable quality. Far too often one hears of cases simply being decided as a timetabling exercise; a child’s weekly diary being carved up without proper thought or consideration of the impact on the child.
If as a society our aim is to create a better future for our children; if we truly believe in progress and not merely maintaining the status quo; if we are to be believed when we talk of improving life chances for the generations to come, then the historic, outdated practice of magistrates hearing private law children’s cases should be abolished. Ensuring all such cases are heard by a specialist Family Judge would provide greater consistency of decision making, applying a more judicious and impartial approach.
Making the case for reforming how we approach child arrangement cases
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