Identity crisis in the family courts? Different approaches in England and Wales and Australia

Abstract

The question of whether family courts are primarily a legal or a social welfare institution has persisted in the history of the court welfare service in England and Wales. The role originated in the probation service and is now undertaken by Cafcass (Children and Family Court Advisory and Support Service). Although this social work contribution to settling parental disputes has been welcomed by the courts, there has been a continuous tension between the legal and social welfare functions of the family justice system. Cafcass has recently attempted to reformulate this by diverting most cases away from formal hearings into a conflict resolution process. However, this new model raises questions of legitimacy, and has not yet been accepted by lawyers or the public. A comparison with the history of Australian courts shows a similar pattern of conflict. After a long struggle, recent reforms in Australia may have achieved a workable consensus that prioritises non-legal resolution processes over adjudication. If this new approach is successful, it will be worth considering a similar solution in England and Wales, and a radical break from the past.

Keywords:

• family justice system
• Cafcass
• separation of social welfare and legal processes

Acknowledgements

I am grateful to Rosemary Hunter and Gillian Douglas for their helpful comments on an early draft of this article.

Notes

^1. Jurisdiction under the Family Law Act 1975 is exercised by the Family Court of Australia and (since 1999) the Federal Magistrates Court in all states and territories except Western Australia, where it is exercised by its own Family Court of Western Australia.