In the alternative

The resources available to deliver justice will never match the demand. Priority will probably inevitably be given to the criminal jurisdiction, notwithstanding the significant link between it and family and civil justice. Apart from the sharing of court buildings and infrastructure, the way that society deals with stress within families via the family justice system impacts on the behaviour of both adults and children often translating into anti-social behaviour and crime.

New and innovative ways to manage the demand and to resolve disputes must continually be sought.

Further the resources available at present include the provision of legal advice and representation to those otherwise unable to pay for it. This puts a considerable strain on government budgets. This will be exacerbated by the introduction of the Ministry of Justice.

Access to justice has been made easier with the simplification of procedure, more user friendly court forms, the development of some informality, the facility to court users to use the internet for the issue of money and, more recently, possession claims in many cases. But access has become more difficult by ever increasing court fees driven by a policy that the operation of the civil courts should be self-financing. The effective withdrawal of legal aid from civil cases resulted in the development of litigation funding that has been almost hyper inflationary, with the introduction of conditional fee agreements and after the event insurance premiums. The courts have only limited control given that the costs are essentially market driven. District judges dealing with most first instance civil cases and a good proportion of family cases see more and more litigants in person, leading to more stress on the system as a whole.

Thinking 'outside the box'

Perhaps the time has come to borrow jargon from the business world to 'think outside the box' in developing initiatives to manage and resolve disputes. Ideally this should be a matter for public debate. A start has of course been made. The introduction of the Civil Procedure Rules 1998 was a major step bringing in robust case management that included the use of alternative (to the courts) dispute resolution.

The purpose was to change the culture of litigation. The practice of the law is essentially conservative and progress seems slow. There is a long way to go. The Civil and Family Justice Councils would have a major role. Some ideas that occur to me will be rejected upon examination for good reason. Others will develop. Some amount essentially to a change of emphasis within established procedure. Possibly at grievous personal risk, I mention:

• The continued development of good advice services available to all but at reasonable cost, perhaps means tested, before disputes get out of hand and result in litigation. District judges deal constantly with many litigants in person who would be saved enormous stress, avoid adjournments of cases and perhaps litigation itself, if they had half an hour of good advice, sometimes that not every sincerely held grievance has a legal remedy. The ultimate saving in costs would be large.
• Convincing litigants who have not taken advice that it is usually possible to settle a dispute. Often District judges hear from litigants that they were not aware that they could settle a dispute by agreement.
• The greater use of alternative dispute resolution in appropriate cases. Increasingly this is identified with mediation. 'In-house' initiatives are being piloted by the Courts Service in small claims track cases. The 'in-house' approach is particularly valuable as some court control remains, additional costs are avoided, and there is less risk of a legally unjust result.
• Disputes should not however be diverted from the court process after commencement just to meet Courts Service targets. District judges recognise these types of case, but often find that when an apparently suitable case reaches allocation, so much has been spent on costs that a stay for mediation is difficult. Robust advice by practitioners is needed.
• Active case management in civil cases brought in under the Woolf reforms could be more robust than at present and extended in family cases. Particularly in the context of disputes between parents over children there is no real substitute in a situation when the parties cannot agree (which is the best possible outcome) for the earliest possible robust intervention by a judge with jurisdiction to make a final order. Allocation and the issue of directions should follow afterwards.
• The traditional adversarial approach may not be right in many cases. An inquisitorial approach is usually essential where parties are not represented. Experience suggests that there is merit in considering its extension. In a financial dispute following marriage breakdown, the Family Proceedings Rules 1991 have long provided for the court to conduct an investigation and then make an order, clearly suggesting an inquisitorial approach. It usually works well when tried. It would be particularly appropriate in disputes over children.

The welfare of the child is paramount. This focus by itself surely suggests that an inquisitorial approach is appropriate. In some cases where the court needs to take the initiative, perhaps making orders without specific request it is essential.

The Family Justice Council has recently been concerned with situations in which consent orders for residence and contact have been made in circumstances where there has been serious domestic violence. There may be potential risks to the safety of primary carers and children themselves. A strictly adversarial approach to the litigation process does not lend itself to what might need to be done to protect adults and children. I need hardly ask if there are any other views than those I have mentioned here.