Introduction

The debates leading to the enactment of the Divorce Reform Act 1969 had led to much renewed questioning of the role of the courts in relation to divorce; but the legal system, fuelled to a significant extent by legal aid, had increasingly come to be involved in other family issues. There were for example disputes about money and property, whether between a couple (married or unmarried) whose relationship had broken down or after a death, and there were issues about children. At the same time, many people claimed that cases involving the family required a different approach from commercial disputes or criminal prosecutions, and that the court system of 1969 did not encourage the development of the specialist expertise which was required.

The Administration of Justice Act 1970 created a Family Division of the High Court. But increasingly there was agitation for the creation of a specialist system of family courts, which would not only adjudicate on family disputes but which would also harness the skills of the social sciences to situations of family dysfunction. Publication in 1974 of the report of the Committee on One-Parent Families¹ (the Finer Report) gave powerful support to critics of the family justice system and advocates of family courts; and the Report’s analysis of the concept of the family court came to dominate discussion for many years. But the Finer Report paid little attention to what came to be seen to be a major failing of the legal system: how women and others could most effectively be protected against violence and molestation. Here the problem was not so much that the law did not in theory offer protection but that the complexity of the law and the lack of effective enforcement procedures often meant that the legal right not to be beaten or abused was in practice illusory. Concern about the ineffectiveness of the law had an important impact on the formation of legal policy, whilst the suggestion that legal processes sometimes exacerbated family differences led to (p.742) renewed interest in alternatives to litigation and notably to the possibilities of mediation and other forms of dispute resolution.

This chapter therefore:

1. 
   

   (i) outlines the new court structure established by the Administration of

   
   
2. 
   

   (ii) analyses the Finer Report’s recommendation for the creation of a system of family courts; and describes the campaign to which publication of the Report added momentum;

   
   
3. 
   

   (iii) sketches the process by which new legislative procedures intended more effectively to deal with the phenomenon of domestic violence were introduced;

   
   
4. 
   

   (iii) notes the influence of the pervasive belief that conciliation (or mediation) should have a greater role in the family justice system, and especially on the thinking which gave rise to the attempt made bythe Family Law Act 1996 to translate the concept of divorce as a ‘process over time’ into legislative form.

Finally, we seek to assess the impact of the legislative and procedural changes in the last years of the twentieth century on the family justice system with particular reference to the question of how far the Finer Report’s prescription has become a reality.

The creation of the Family Division of the High Court, 1970: Specialisation revived

Divorce was originally a matter for specialists; and for half a century or more after the Matrimonial Causes Act 1857 made judicial divorce available in this country the judges of the ‘Divorce Court’ (as we have seen) repeatedly asserted that the jurisdiction they exercised required a high degree of specialist expertise. They claimed that to extend jurisdiction to other High Court judges or (even worse) to the county court would have the most serious and detrimental consequences for the administration of the law. But these claims could not be sustained in the world of mass divorce which emerged from the two World Wars when divorce cases were increasingly tried by common law judges at Assize and by Divorce Commissioners (including county court judges) both in London and the provinces. Finally it had to be accepted that the 400 or so county court judges could safely be entrusted with jurisdiction to grant at least those divorces which were undefended.² These changes made it difficult to sustain any notion that trying divorce cases was work for judicial specialists.

(p.743) But the breakdown of marriage did not only affect the husband and wife. It is true that for many years the question of who was to have custody of the children and how they were to be supported was dealt with as an incident (and often only a minor incident) of the granting of a divorce, in practice usually following virtually automatically from the decision about who had succeeded in the divorce suit. But the end of World War II saw a considerable increase in litigation about the upbringing of children. In part this stemmed from increasing acceptance of the view that questions about the upbringing of the children of divorced parents should be resolved by an assessment of the children’s welfare in which the question of the matrimonial guilt or innocence of the parents was not the dominant factor;³ and this acceptance was underlined by recommendations in both the Denning and Morton Reports for distinctive procedures to ensure that the courts were properly informed about relevant considerations. But in part the question of how to provide for children arose in other cases, especially those in which (following the Children Act 1948) local authorities had become involved by reason of concerns about children’s welfare. And disputes about property could arise between unmarried as well as between married (or formerly married) couples.

No rational general principle governed the allocation of cases involving family issues to different courts and different judges. Some (for example, the affiliation proceedings in which the court could adjudge a man the putative father of an illegitimate child and order him to make financial provision for the child, and proceedings involving a local authority’s decision to assume parental rights over a child) were the preserve of the magistrates’ courts, but in other areas (for example, applications by married women for financial support orders against a husband) applications could be made to either the High Court the county court or to the magistrates.⁴ Even within the High Court by no means all cases concerning the family were allotted to the Probate Divorce and Admiralty Division. For example, the burgeoning⁵ wardship jurisdiction of the High Court—often invoked in disputes about children, even in cases where a divorce petition had been filed—was, for historical reasons, dealt with exclusively in the Chancery Division of the High Court, as were applications for reasonable provision out of a deceased person’s estate and many applications relating to property rights; whilst the Queen’s Bench Division handled some appeals from decisions taken by magistrates in the exercise of their family jurisdiction.

(p.744) The situation obviously called for rationalisation;⁶ and in 1969 Lord Chancellor Gardiner introduced legislation creating⁷ a Family Division of the High Court (to which, for present purposes, it suffices to say ‘almost every jurisdiction of a family kind’⁸ was allotted). The Probate Divorce and Admiralty Division was no more; and since the coming into force of the Administration of Justice Act 1970 there has once again been a specialist High Court judiciary exclusively responsible for the greatly increased range of family litigation in the High Court.⁹ As Lord Gardiner put it:¹⁰

’… we are not simply striving for something that would be tidier and look better on an organisational chart. This is a matter that concerns human feelings and it is most important that all family matters … should be dealt with in the most sympathetic atmosphere and by Judges and officials who really understand family problems and how to grapple with them. More and more emphasis is now laid on the importance of welfare: the welfare of every member of the family who may be concerned in any domestic case that comes before the courts. So long as the jurisdiction in family matters is scattered … and often dealt with by Judges and others in between other totally dissimilar kinds of business, it must surely be so much harder for those who are concerned to be familiar with welfare matters and keep an eye constantly on them’.

(p.745) The creation of the Family Division can be seen in retrospect to have had considerable significance, not least in confirming the separate identity and intellectual respectability of family law. But the legislation was strongly criticised at the time¹¹ for its limited scope.¹² In particular, the legislation dealt only with the arrangement of business at the highest level in the court hierarchy, and did nothing to reform or integrate the extensive family jurisdiction exercised by magistrates. There were many who believed that much more radical reform was necessary: the creation of the Family Division of the High Court did little to still criticism of such matters as the random distribution¹³ of family business between the High Court the county court and the magistrates,¹⁴ the supposedly criminal atmosphere of the magistrates’ courts, and the fact that the basis of matrimonial relief differed according to the court in which proceedings were instituted.¹⁵

(p.746) The Finer Report:¹⁶ Family courts

The law’s response to domestic violence: civil and criminal procedures

Possibly the reason why the Finer Report largely ignored the question of the effectiveness of the court system in protecting one-parent families was that, in (p.753) theory, the law provided ample redress. Magistrates had power to make a ‘separation order’ against a man guilty of cruelty, the Divorce Court had power to grant a divorce on that ground, it was well settled that the High Court and the county court had power to grant injunctions restraining the husband (on pain of imprisonment for breach) from molesting the wife and in some circumstances even requiring him to leave the family home, while most ‘wife battering’ would constitute a criminal offence in respect of which the perpetrator could be prosecuted and imprisoned.⁶⁸ But that was theory. The publication in 1974—coincidentally the year in which the Finer Report was published—of Erin Pizzey’sScream Quietly or the Neighbours will Hear drew attention to the reality, which was that the law often failed to provide any effective redress to victims of what became known as domestic violence. The House of Commons set up a Select Committee on Violence in Marriage;⁶⁹ and a great deal of attention was given to the subject by scholars and commentators in this country and elsewhere (particularly in the United States).⁷⁰

The Select Committee accepted that the law was inadequate to protect victims. Some of the problems—the apparent reluctance of the police to intervene in what were classified as ‘domestic’ incidents, at least in the absence of serious physical injury and the reluctance of women to pursue legal proceedings which could result in the punishment of a partner, for example—transcended the imperfections of the legal framework; but that framework was itself shown to be defective. For example, although a woman might obtain an injunction restraining her husband from ‘molesting’ her, enforcement of its terms was a matter for the civil (rather than the criminal) law. The police had no power to arrest the husband even if they were aware that he was in breach of the injunction. It was up to the wife to apply to the court for a committal order, and if such an order were granted it would be up to the officers of the court (the tipstaff in (p.754) the High Court, the bailiffs in the county court) to execute it. And if the husband happened to be the owner of the family home the court (so the House of Lords had held in 1972)⁷¹ had no power under the Matrimonial Homes Act 1967 to order him to leave it (although it could require him to occupy only a part of the house).

The Domestic Violence and Matrimonial Proceedings Act 1976 was intended to remedy some of the defects in the law. It empowered a county court to grant orders forbidding molestation of the other spouse or a child and excluding a spouse from the family home (or part of it); and also extended these powers to cases where a couple were not married but had been living together on a stable basis.⁷² But the most significant innovation made by the Act was to bring the police and the criminal justice system into the protective scheme provided in the civil courts: provided there was evidence that the defendant had caused actual bodily harm to the applicant or to a child, the court was given a discretion to attach a power of arrest to what were commonly called ouster and non-molestation orders.⁷³ Such on order would be registered with the police; and the police were empowered to arrest without warrant a person reasonably suspected of being in breach ‘by reason of that person’s use of violence or … his entry into any premises or area’.⁷⁴ A person arrested under this provision would be brought before a court and could then be punished for breaking the terms of the order.⁷⁵

The 1976 Act did not extend to the magistrates’ courts; but the Domestic Proceedings and Magistrates’ Courts Act 1978⁷⁶ gave magistrates’ courts powers to make personal protection orders and exclusion orders and sought to establish more effective enforcement procedures including a power of arrest.

The 1978 Act was formidably complex; it was also, when compared with the powers of the superior courts under the 1976 Act, in many ways restricted. There was no protection for unmarried couples, the magistrates were not to be allowed to make orders protecting against molestation which did not extend to threatened violence, whilst the magistrates’ powers to make orders excluding a spouse from the family home were much narrower than those available in the superior courts. Far from creating the uniform code of law which Finer had envisaged for the family court the 1978 Act, in its application to situations of (p.755) domestic violence, seemed to reflect Lord Scarman’s telling description⁷⁷ of a ‘hotchpotch of enactments of limited scope passed into law to meet specific situations or to strengthen the powers of specified courts’; whilst experience of the working of the law⁷⁸demonstrated that it still failed to provide protection on the scale which justice seemed to require. No doubt some of the problems were not apt for a purely legislative solution⁷⁹ but the legal framework was still seriously defective.

In 1992 the Law Commission recommended reform so that the law would provide adequate protection for the adults and children involved whilst avoiding unnecessarily exacerbating hostilities. The Commission also proposed syn-thesising the legal remedies available to deal with domestic violence into a clear, simple and comprehensive code.⁸⁰ But there were some who thought that the Law Commission had gone too far in equating the legal position of unmarried and married couples,⁸¹ whilst the question of what qualifications should be required of an applicant wanting to seek legal protection against being ‘molested’—the Law Commission had sought to give such protection to those who had had a genuine ‘family’ relationship rather than, for example, the relationship of householder and lodger—aroused some controversy.⁸²

(p.756) In 1995, the (Major) Conservative Government introduced a Family Homes and Domestic Violence Bill to give effect to the Law Commission’s main proposals. The Bill was carefully examined by the House of Lords Special Public Bill Committee and did not attract much public notice or interest, much less any significant opposition on grounds of principle. But, faced with a sudden storm of opposition from ‘pro-marriage’ groups amongst its own supporters in the House of Commons, the Government decided to withdraw the Bill. In the following session, the relevant clauses with some additions intended to emphasise the importance of the question whether or not a couple had (or had not) given each other ‘the commitment involved in marriage’⁸³ were reintroduced and became Part IV of the Family Law Act 1996.⁸⁴

The 1996 Act sweeps away the earlier legislation, replacing it with a single consistent set of remedies available in all the courts having jurisdiction in family matters⁸⁵ (although it seems that the great bulk of applications for protection against domestic violence are made to the county court).⁸⁶ On one view,⁸⁷ the combined effect of the 1996 Act and the Children Act 1989 is to create what can properly be called a ‘family court’; but before discussing that claim we need to consider in the light of subsequent developments Finer’s concept of ‘conciliation’ as a part of the process for dealing with family breakdown.

Finer’s concept of conciliation: a new meaning for a new era

We have seen that for many years it had generally been assumed that the function of ‘conciliation’ had been primarily (albeit not exclusively) to bring together a couple whose marriage seemed to have broken down. But the Finer Report (building, it must be said, on the slenderest of foundations)⁸⁸ drew a (p.757) sharp distinction between reconciliation, which it defined as ‘reuniting persons who are estranged’,⁸⁹ on the one hand andconciliation on the other. For Finer, conciliation was not (or at least not primarily) concerned to bring about a reconciliation, but was rather ‘the process of engendering common sense, reasonableness and agreement in dealing with the consequences of estrangement’.⁹⁰ The Committee accepted⁹¹ that the judge and the welfare services associated with the court should be alive to any sign that a reconciliation was possible, and in such a case would take the steps (’ usually involving referral to an outside agency’) most likely to procure it. But the Committee shared the scepticism (common amongst many who had previously studied the issue) about the prospects for securing reconciliation once the parties had presented themselves to formalise the breakdown of the relationship;⁹² and urged the ‘fundamental importance’ of empowering families ‘to make the best decisions and reach the best solutions over the whole range of problems’ which breakdown involved, placing primary emphasis on the ‘practical needs of the family at the time when the court assumes control over the relationship between its members and their affairs’. The message of Finer was that the victims of family breakdown should be encouraged to ‘wind up their failure with the least possible recrimination, and to make the most rational and efficient arrangements possible for their own and their children’s future’. The Committee believed couples could be helped in this by the provision of conciliation services, notwithstanding the fact that their marriage had broken down, and broken down irretrievably.

The Finer Report’s eloquent insistence that achieving reconciliation⁹³ was not directly a function for the court system at all, whilst conciliation⁹⁴ in the sense in which the Finer Committee defined⁹⁵ it was in contrast a service which should be encouraged in the context of the family justice system may, viewed negatively, be no more than the final confirmation of the traditional view put (p.758) forward in the 1930s by Lord Chancellor Sankey, upheld by the Harris Committee, and accepted by Denning. But the positive side of Finer lies in the influence which its analysis had on the subsequent development of the family justice system. In particular, the enthusiastic support given by the Finer Report to conciliation in the context of a family court structure seems to have been influential in shaping opinion.

Finer’s distinction between conciliation and reconciliation was almost immediately accepted by the Law Commission’s Report on Matrimonial Proceedings in Magistrates’ Courts;⁹⁶ and it was soon realised that although the Finer proposals were made in the context of the creation of a new family court structure⁹⁷‘conciliation’ could be practised without this innovation. The notion that conciliation (or—in another interesting verbal change—’ mediation’) had the potential to help bring failed relationships to an end with the minimum of bitterness and in such a way as to promote a good continuing relationship between the parties and their children⁹⁸ was highly influential in developments over the last quarter of the twentieth century. In contrast, although reconciliation remained part of the rhetoric of divorce reform—the Divorce Reform Act 1969⁹⁹ had proclaimed that its purpose was to facilitate reconciliation and references to reconciliation as an object of policy continued to be embodied in the family justice legislation¹⁰⁰—the Finer Report’s emphasis on what appeared to be the more attainable objectives of conciliation found a ready response. As an Inter-Departmental Committee on Conciliation¹⁰¹ reported in 1983, there had been an ‘enormous growth’ of interest in conciliation and great enthusiasm ‘both in terms of the numbers of those who freely give their services, and in the strength of their commitment to it’.¹⁰² A vast literature—apparently out of all proportion to the amount of conciliation work actually being undertaken—was published.¹⁰³

The Finer Report’s enthusiasm for conciliation was influenced primarily by concern for civilising the consequences of marital breakdown. But there was (p.759) another factor which made the concept attractive to Government. This was that encouraging recourse to conciliation rather than litigation might be an effective technique for reducing the ever increasing pressure on publicly funded legal aid. For this reason, the desirability of encouraging and assisting husband and wife to ‘settle their differences without recourse to formal court procedures’¹⁰⁴ became a recurrent and insistent theme¹⁰⁵ of Government pronouncements. The Lord Chancellor’s Advisory Committee¹⁰⁶ in particular took an active and supportive interest in the development of facilities for conciliation¹⁰⁷ which (it was hoped) would make divorce less ‘adversarial’ and thereby not only benefit the parties but also achieve a saving in legal aid expenditure and court time.¹⁰⁸ Conciliation would also minimise the cost of other services—such as health care and education—which were often increased as a result of emotional trauma in divorce.

Much of the public interest and enthusiasm was directed to establishing agencies¹⁰⁹ outside the court system intended to assist couples to resolve their problems without litigation. But, although a number of Inquiries were established,¹¹⁰ Governments concerned to minimise expenditure for long refused to provide any significant assured funding to support what came to be called (p.760) ’ out-of-court’ conciliation. In direct¹¹¹ practical terms, the most that the legal aid authorities could do to support out of court conciliation was to authorise payment by solicitors of modest fees to recognised professionals offering conciliation services and to include that disbursement in the bill which legal aid would pay.¹¹² But a great deal of work was done within the publicly funded court system, in part by the probation service in the Family Court Welfare Service,¹¹³ and in part by District Judges adapting a pre-trial review procedure—sometimes to the extent of giving the parties an indication of what the particular District Judge involved would regard as the likely outcome if the case were litigated—in attempts to encourage the settlement of the financial consequences of their divorce. In the year 2000 this practice—which at one time would have seemed totally inconsistent with traditional notions of the judicial function—was officially adopted, and Rules provided a comprehensive new procedure for dealing with the financial consequences of divorce.¹¹⁴ This scheme, intended to reduce delay, facilitate settlements, limit costs and provide the court with greater control over the management of the proceedings, was based in essence, on the practices developed over the years by progressively minded District Judges (including the practice of a District Judge giving an indication of the level of provision which he would think appropriate on the basis of the information before him). One form of conciliation was thus formally incorporated into the family justice system.¹¹⁵

But there remains one strongly voiced reservation¹¹⁶ about excessive reliance on conciliation (and even more if the concept is taken to extend to reconciliation). (p.761) This is that an ‘amicable settlement’ may in fact represent an abuse of bargaining power by the physically and emotionally stronger party—usually the man—and may thus even become an instrument for further damaging a vulnerable woman. It was for this reason that the ‘general principles’ laid down in the Family Law Act 1996¹¹⁷ included—albeit only after prolonged opposition from the Government—a directive that any risk to one of the parties to a marriage, and to any children, should ‘so far as reasonably practicable, be removed or diminished’.¹¹⁸

MARRIAGE SAVING REVIVED: THE FAMILY LAW ACT 1996

Following the publication in 1990 of the Law Commission’s Report on The Ground for Divorce¹¹⁹ the Government accepted¹²⁰ that mediation (as ‘conciliation’ was described, apparently to avoid confusion between the process of dispute resolution and the process of reconciling the parties and saving their marriage)¹²¹ should have a central part in resolving disputes. A White Paper¹²² stated:

’ Family mediation is a process in which an impartial third person, the mediator, assists couples considering separation or divorce to meet together to deal with the arrangements which need to be made for the future. Because the parties discuss these matters face to face, family mediation is much better able to identify marriages which might be capable of being saved than is the legal process … [It] has as its primary objectives: to help separating and divorcing couples to reach their own agreed joint decisions about future arrangements; to improve communications between them; and to help couples work together on the practical consequences of divorce with particular emphasis on their joint responsibilities to co-operate as parents in bringing up their children.’

(p.762) The Family Law Act 1996 was based on an unequivocal acceptance of the view that mediation had ‘enormous potential’ to minimise the adverse consequences of marital breakdown. The Act contained a number of provisions to encourage mediation in divorce proceedings. But for the first time the Government went beyond words: public funding was made available through the Legal Aid Board for the provision of mediation. (Conversely, there was to be no funding of legal representation in divorce unless the applicant had first attended a meeting with a mediator and intended to determine whether mediation was suitable in all the circumstances.¹²³) Although the provisions relating to the substantive law of divorce were never brought into force, the provisions for funding mediation were implemented;¹²⁴ and thus mediation has become a statutorily recognised part of the divorce process.

The 1996 Act also, dramatically, marked a revival of the belief (long scorned by ‘informed opinion’) that marriages can be ‘saved’ even after the parties have decided to start the divorce process: the Act required¹²⁵courts and others to have regard to the general principle that the parties to a marriage should be ‘encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage’.¹²⁶ Departmental responsibility for marriage support was transferred to the Lord Chancellor’s Department; and the 1996 Act¹²⁷gave the Lord Chancellor power to make grants in connection with the provision of marriage support services.¹²⁸ Lord Chancellor Mackay believed (p.763) that the reconciliation part of the divorce process was ‘as important as the mediation proposals, if not more so’,¹²⁹ but once again it is too early to assess the impact of the legislative support given by the 1996 Act for marriage support; whilst the Blair Government’s decision to repeal the new divorce law makes the future difficult to predict.

The court system established by the Children Act 1989 and the Family Law Act 1996: a family court for the millennium?