Family judges in England and Wales: The adversarial myth

Family Judges in the English courts: the adversarial myth

The Family Justice system in England and Wales is widely held to differ from civil law systems not only in the lack of  codification, but in the use of an adversarial process. The recent Family Justice Review chaired by David Norgrove, published for the review by the Ministry of Justice in November 2011makes many helpful proposals for change, but still subscribes to the view that the adversarial process in the English family courts contributes to exacerbation of conflict and poor outcomes in family matters. This paper draws on findings from an observational study by OXFALP of the work of 20 judges in the English lower courts in 2009-2010 and questions this view. We observed the judges teaching, promoting good quality work by other welfare agencies, enforcing the current law ( Children Act England and Wales 1989) which requires the court to have as its paramount consideration the best interests of the child , and managing cases while working towards settlement , avoiding trial and adjudication wherever possible. We saw a settlement culture prevailing.  This kind of approach may take more time and resources than a quick trial of the issues in dispute. But we suggest that the outcomes are more acceptable to the parties, and more enduring. It would be helpful in planning future change if this information was more widely available and appreciated.

Mavis Maclean, Oxford Centre for Family Law and Policy