Editorial

In the editorial for the previous issue, my co-editor, Mavis Maclean, noted the changes being made to the Journal. In this issue, we are delighted to launch our new ‘Debates in Social Welfare’ section which will appear in the Journal twice a year. As the launch piece for the new section notes, this Journal is intimately connected to the development of social welfare scholarship and we are delighted to carry a co-authored article by Jed Meers et al who provide a thought-provoking examination of the boundaries of social welfare law. In doing so, the authors provide a typology of approaches to defining the field of inquiry and go on to consider how future social welfare research can expand its boundaries. As co-editors, Mavis and I are absolutely delighted that the Journal is able to provide a dedicated section to consider social welfare issues. Not only do we look forward to seeing its development over time, but we would like to encourage contributions from emerging and established social welfare scholars working in the field. In introducing this new section, the aim is to reaffirm the Journal’s commitment to the social welfare field and provide the opportunity for authors to examine and consider social welfare issues which do not always reach a court for decision making.

In addition to social welfare concerns, the Journal of Social Welfare and Family Law, has for many years, had an ongoing interest in publishing research on alternative forms of dispute resolution in family justice – an issue of continued policy relevance. This has included articles such as; Barlow (2017), Hitchings and Miles (2016), Hunter (2017) and Skinner (2019).

A number of these articles have examined the issue of mediation. In a recent article published in the previous volume of this Journal (Schindeler 2022), Emily Schindeler considered the issue of mandatory family dispute resolution for parenting matters in Australia. The rationale for introducing this requirement in Australia (which has been in place for over a decade), was that it would provide an arrangement that was ‘effective, cost and time efficient [with] sustainable positive outcomes’. (Schindeler 2022, p. 98) This is similar to the British Government’s rationale in its current consultation on introducing compulsory mediation for private family disputes in England and Wales before they go to court: ‘by reducing the overall number of disputes from reaching court, we can create space and free up time so that these cases can be heard more quickly’. (Ministry of Justice 2023, p. 3). A laudable aim. However, Schindeler’s article provides a hugely relevant account of the implications of compulsory family dispute resolution through analysis of recent research, reviews and court cases. She concludes by suggesting that not only is more evidence required before it can be assessed whether the intended outcomes are being achieved but also that any ‘promotion of the expansion of FDR (Family Dispute Resolution) should as a minimum consider how success will ultimately be measured and demonstrated’. (Schindeler 2022, p. 98) If the ultimate aim of the British government in its current consultation is for fewer couples to access the court, then any ‘success’ will surely be viewed in terms of numbers of cases reaching the court for determination rather than from any broader perspectives, such as potential outcomes for the families concerned.

In a special issue focused on Mediation: The Questions for this Journal in 2010, the editorial noted some of the problems with mandatory mediation: ‘there is emerging evidence that mandatory mediation has not helped the multiproblem families, and that a more holistic approach including triage and specialisation may achieve the triple aims of quality, speed and cost effectiveness’. (Maclean 2010, p. 106) Maclean’s comment remains as germane now as it was in 2010, particularly given the current Government consultation into making mediation mandatory for all couples applying to the family courts for resolution of their private law disputes. (Ministry of Justice 2023, p. 7). As she noted in the same editorial:

The attraction of mediation to policy-makers is clear. It is argued that it is better for individuals to take responsibility for their lives, that the court is overloaded and prone to delay which may be detrimental to the children involved, and last – but not least – that courts are expensive for both those who pay their own costs and for the public purse through the legal aid system. … [However] (a)t a time of stress, men and women seek information, advice and support from someone who is committed to helping them, in preference to an impartial facilitator whose primary task is to promote an agreement rather than meet the needs of the individual client.

Whilst Maclean wrote this prior to the LASPO reforms, the issue remains equally as pertinent now. With cuts to legal aid and the lack of individualised support, recent research has demonstrated how mediation is not a one-size fits all solution and that there is a need to think carefully about the binary approach of court or mediation (Symonds et al. 2022, v). Furthermore, in 2022, the House of Lords Select Committee Report on the implementation of the Children and Families Act, recommended abolishing MIAMs (Mediation and Information Assessment Meetings) and the mediation voucher schemes, and providing instead a universal free hour of general advice. (House of Lords Select Committee on the Children and Families Act 2022, p. 4) Obviously, in the English and Welsh context, mediation would only be mandatory for those couples who wanted to access the court – but the government’s current consultation and proposal seems to sidestep the issue that individuals who wish to access the court are not using it as a first port of call, but rather as a last option. These cases also tend to be amongst the least straightforward and include individuals who have been unable to come to an agreement amongst themselves to date and may well be in an entrenched conflict. Recent empirical research has highlighted this, with the Separating Families research findings showing that court was commonly treated by parents as an option of last resort, rather than as a preferred means of resolving disputes. (Symonds et al. 2022, iv).

Whilst at heart an academic journal, the Journal of Social Welfare and Family Law aims to contain policy and practitioner relevant content in both the social welfare and family law fields. This is no different in this issue, which sees content on topics as diverse as domestic abuse (Arnell and Thunberg, and O’Sullivan), the risks and benefits of post-separation parenting apps (Heard et al) and the consideration of Universal Credit sanctions (Andrews). As always, we are delighted to include case commentary covering an assortment of legal issues, including Brian Sloan’s piece on detrimental reliance and the family home; Paul Spicker’s comment on the case of R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) which concerns the Department of Work and Pensions discretionary power to waive the recovery of overpayments; Katie Bales’ consideration of the Government’s approach to asylum support through an examination of the case of R (on the application of CB) v SSHD [2022] EWHC 3329 (Admin) and Rebecca Khan’s examination of the consequences of the Court of Appeal’s decision in R (Kays) v Secretary of State for Work and Pensions [2022] EWCA Civ 1593, in which she asks where this decision leaves young disabled students, heading straight to university from school and navigating a complex, scarcely resourced benefits system?

As editors, the editorial team remain committed to the Journal’s coverage of a wide-range of family and social welfare material whilst also ensuring a continued focus on issues of policy and practice relevance.

Disclosure statement

No potential conflict of interest was reported by the author(s).