Family law without lawyers – A systems theory perspective

Abstract

Prior to the loss of legal aid for many litigants in private law Children Act proceedings occasioned by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, family lawyers were observed to pressurise victims of domestic violence to agree to unsafe contact orders. Drawing on Luhmann’s theory of autopoietic social systems, this article suggests that, since April 2013, family lawyers have been repositioned as the champions of victims of domestic violence, and considers what this tells us about the way in which family law is observed to operate without lawyers in many cases. It suggests that the problems that litigants in person create for the orderly running of proceedings and the continued operations of the legal system have led to a perceived crisis for justice, but that family law is likely to survive without lawyers in many cases, although little change can be observed in the substantive law.

Key words:

• Child arrangements/contact
• domestic violence
• autopoietic systems theory
• litigants in person
• family lawyers

Notes

1. The Queen (On the Application of Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91.

2. It should be noted that, in response to this decision, the government amended Regulation 33 as an interim measure by substituting a time limit of 60 months for the 24-month limit – see Civil Legal Aid (Procedure) (Amendment) Regulations 2016, reg 2(2), which came into force on 25 April 2016. In February 2017 it was reported that the government intends to remove the time limit altogether – see https://www.theguardian.com/law/2017/feb/23/legal-aid-domestic-violence-law-courts

3. The term ‘child arrangements’ replaced ‘residence’ and ‘contact’. The term, ‘child arrangements/contact’ will be used in this article in order to cover the pre- and post-2014 position.

4. See, e.g. Eekelaar, Maclean, and Beinart (2000); Maclean and Eekelaar (2016); Trinder et al. (2014).

5. The term, ‘autopoiesis’, derives from the biological term formulated by the scientists Humberto Maturana and Francisco Varela, for an organism that reproduces itself from its own elements.

6. An irritation is an event that occurs in one or more social systems, which causes that system to respond by reconstituting it in ways that the system can understand (see King, 1997; Luhmann, 2013).

7. Structural coupling’ is Luhmann’s term for the situation where systems’ operations form stable patterns for each other (Luhmann, 2004, 82).

8. This formula has been affirmed in numerous subsequent cases such as Re H (Contact) (Principles) [1994] 2 FLR 969; Re O (Contact: Withdrawal of Application) [2003] EWHC 3031 (Fam), [2004] 1 FLR 274.

9. See also Re M (Contact: Violent Parent) [1999] 2 FLR 321; Re M (Interim Contact: Domestic Violence) [2000] 2 FLR 377.

10. Bailey-Harris, Barron, and Pearce (1999); Eekelaar et al. (2000); Eekelaar and Maclean (2013); Harding and Newnham (2015); Maclean and Eekelaar (2009, 2016); Neale and Smart (1999); Piper (1999).

11. Bailey-Harris, Davis, Barron, and Pearce (1998); Coy, Perks, Scott, and Tweedale (2012); Dewar and Parker (1999); Eekelaar et al. (2000); Hunter and Barnett (2013); King (1999); Piper (2000); Smart (1995).

12. Buchanan, Hunt, Bretherton, and Bream (2001); Cassidy and Davey (2011); Harding and Newnham (2015); Hunt and Macleod (2008); Hunt, Macleod, and Thomas (1999); Perry and Rainey (2007).

13. For similar findings see Coy et al. (2012); Hunt and Macleod (2008); Hunter and Barnett (2013).

14. Barnett (2000); Buchanan et al. (2001); Hester and Radford (1996); Humphreys and Harrison (2003); Kaganas & Piper (1999); Neale and Smart (1997, 1999); Perry and Rainey (2007); Radford, Sayer, and AMICA (1999); Women’s Aid’s (1997).

15. Potter P, Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [Potter, 2008] 2 FLR 103, reissued as amended at [2009] 2 FLR 1400; subsequently incorporated in the Family Procedure Rules 2010 as PD12J.

16. PD12J enjoins courts to consider, when domestic violence is raised as an issue, ‘the extent to which it would be likely to be relevant in deciding whether to make a child arrangements order and, if so, in what terms’ (Para. 6).

17. Barnett (2014a); Cassidy and Davey (2011); Coy et al. (2012); Harding and Newnham (2015); Hunt and Macleod (2008); Hunter and Barnett (2013); Thiara and Gill (2012).

18. Ministry of Justice (2015).

19. See also Hunter and Barnett (2013); Trinder et al.(2014); written evidence from various respondents to the Commons Select Committee’s inquiry into LASPOA [‘CSC’] (2014).

20. CSC (2014); Hitchings, Miles, and Woodward (2013); Judiciary of England and Wales (2013); Maclean & Eekelaar (2009); Moorhead and Sefton (2005); Trinder et al. (2014).

21. Coy et al. (2012); CSC (2014); Harding and Newnham (2015); Hunter and Barnett (2013); Moorhead and Sefton (2005); Williams (2011).

22. Cobb (2014, p. 665); Eekelaar et al. (2000); Harding and Newnham (2015); Hunter and Barnett (2013); Judicial Executive Board (2014, p. 4); Moorhead and Sefton (2005); Trinder et al. (2014).

23. See also Re C (Due Process) [2013] EWCA Civ 1412 per Ryder LJ at para. 48.

24. See also Re M (Parental Responsibility) [2013] EWCA Civ 969; Re J-M (A Child)[2014] EWCA Civ 434; Re V (A Child) (Inadequate Reasons for Findings of Fact) [2015] EWCA Civ 274; Re Q (A Child) [2015] EWCA Civ 991; Re T (A Child: Suspension of Contact: Section 91(14) CA 1989) [2015] EWCA Civ 719; Re F (Children) [2015] EWCA Civ 1315.

25. Section 2A of the Children Act 1989 was introduced by Section 11 of the Children and Families Act 2014, and is included in summary form in Paragraph 4 of PD12J.

26. Prison and Courts Bill 2017.