Family justice in hard times: can we learn from other jurisdictions?

Abstract

This paper presents the views of scholars from Australia, Canada, Scotland, France and Sweden on the current working of the Family Justice system in England and Wales, and comparing the experience here with those using the system in their own jurisdiction using vignettes describing a typical divorce and child protection case. The authors identify any special features of their own system which might be of interest here.

Keywords:

• Family justice systems
• divorce and child protection in Australia
• Canada
• Scotland
• Sweden
• France

Notes

 1. Family Justice Review Interim Report March 2011.

 2. eg see “Learning from Bristol, the Inquiry into the management of care of children receiving complex heart surgery at the Bristol Royal Infirmary”, CM5207 2001.

 3. This paper gratefully acknowledges the support of the Ministry of Justice in arranging the consultation, but the views expressed are those of the author and expert consultants, and not necessarily of the Ministry of Justice. We are grateful for the assistance of Dr Barbara Willenbacher and Professor Lluis Flaquer.

 4. See Kaspieu, p. 397.

 5. Australian Government, Australian Institute of Family Studies, Evaluation of the 2006 family law reforms is available on http://www.aifs.gov.au/institute/pubs/file/index.htm.

 6. see also Oxford Family Policy Briefing 7 “Caring for children after parental separation: would legislation for shared parenting time help children?” B Fehlberg, B Smyth with M Maclean and C Roberts, Oxford, May 2011) Further legislation is currently before the Australian Parliament entitled Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011.

 7. The AIFS Evaluation, Melbourne, 2010, pp. 304–308.

 8. R. Hunter, “Child Related Proceedings Under Pt V11 Div 12A of the Family Law Act: What the Children's Cases Program Can and Cant tell Us “ (2006) 20, Australian Journal of Family Law 227.

 9. This finding draws on the Longitudinal Study of Separated Families Wave 1, which used a sample of 10,000 separated parents.

10. AIFS Evaluation, Executive Summary, p.E3.

11. Family Courts Violence Review by Professor Richard Chisholm, January 2010 for the Attorney General, Australia.

12. see J. McIntosh and R. Chisholm (2007) “Shared Care and Children's Best Interests in Conflicted Separation: A Cautionary Tale form Current Research” Australian Family Lawyer,Vol 20(1) pp. 3–16.

13. see Michael Trebilcock, Report of the Legal Aid Review 2008, Ontario, Attorney General 2008.

14. J Paetsch, L Bertrand, and N Bala, The Child Centred Family Justice Strategy Survey: Survey on the Practice of Family Law in Canada,2004–2006, Department of Justice, Canada, 2007.

15. Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guideline,Department of Justice Canada, July 2008, at < http://www.justice.gc.ca/end/pi/fcy-fea/spo-epo/g-ld/spag/pdf/SSAG_eng.pdf>

16. this is the term used in Alberta, and there are similar arrangements in other provinces.

17. Au tribunal des couples,Rapport de recherche pour la Mission de Reserche Droit et Justice, 2010, CNRS, Celine Bessiere Universite Paris Dauphine IRISSO et CMH et al.

18. see John Dewar, Address to the Family, Regulation and Society Research Network, Nuffield Foundation, London, 15 March 2010.

19. Transforming lives: law and social process, ed Pascoe Pleasence, Alexy Buck and Nigel Balmer, published by the Stationary Office, 2007.

20. Court Statistics Quarterly, 2009, unpublished data.

21. Hunt J and Macleod A Outcomes of applications to court for contact orders after parental separation, Ministry of Justice, 2008.

22. Masson J et al Care Profiling Study Ministry of Justice, 2006.

23. The Australian Evaluation found that of parents who described FDR as their main source of help, 76% also used lawyers, and 32% went to court. Of those describing lawyers as their main source of help, 67% also used FDR and 54% went to court. (LSSF W1 2008)

24. Legal Aid and Sentencing Bill 2011.