Member Article

Sir Andrew McFarlane, President of the Family Division gave an address to the Jersey International Family Law Conference on 8 October 2021¹. With three years of his term remaining, he set out two areas where he intends on devoting additional time.

The first is ‘transparency’ in the Family Court and the second is the resolution of Private Law disputes between parents regarding the care arrangements for their children after separating.

The second area has been deemed the primary focus. How separated families find the best way to resolve conflict, usually involving the arrangements for the children has been an on-going conundrum for many years, with the inception of the Children Act in 1989 bringing about what was then radical reform. It saw the loss of the terms ‘custody’ and ‘access’ from the statute book; terms which are still unfortunately widely used in the media and undoubtedly produce physical ownership connotations, which have little place when considering the welfare of children, and the psychological and emotional relationship they have with their parents.

Sir Andrew McFarlane talked about the attempts over the years to achieve a better way at resolving family disputes, including the report presented to the Lord Chancellor in 2002 ‘Making Contact Work’, which was compiled after extensive consultation. Interestingly, the recommendation that was singled out was the strong belief that a properly functioning Children and Families Advisory and Support Service (CAFCASS) was essential to the efficient operation of the Family Justice System.

In 2014 we saw another overhaul, which runs much deeper than just the perceived change in phraseology, with the Children and Families Act 2014 removing the terms ‘Residence Order’ and ‘Contact Order’, being replaced with an all-encompassing ‘Child Arrangements Order’.  The aim was to level the parental status playing field, so that where parental responsibility was shared, it should produce a status of equals for parents. Unfortunately though, we have seen the emergence of a two-level status, by such orders being drafted in terms of the parent that has the children ‘live with’ them and the parent that does not. The intended neutral order did not achieve the desire outcome.

So where does that leave us? Sir Andrew McFarlane outlined work carried out by The Family Solutions Group (FSG), a subgroup of the President’s Private Law Working Group tasked with identifying and developing a better approach. The group is multidisciplinary and their report ‘What About Me?’, published in October 2020 set outs how the current short falls for separated families in finding a solution can be met. Sir Andrew McFarlane would hope to use the report “as the blueprint for radical change.”

The key messages identified by Sir Andrew McFarlane from the report ‘What About Me?’ are:

1. “Safety first – if needed specialised services and the court are there to protect you.

2. In the absence of safety concerns – the law expects parents to exercise responsibility, not rely on rights, to prioritise child welfare above negative feelings about each other.

3. Getting away from the adversarial language promoting a ‘fighting for my rights’ mentality (and from the promotion of this by the use of such acclamations as ‘somebody you would want in your corner’ found in some legal directories and websites)”.

He went on to say: “The FSG propose two separate pathways where a case comes to Court. For those involving safeguarding and the need for protection there should be ‘the safety pathway’. Where safeguarding and protection are not an issue ‘the co-operative parenting pathway’ should be used with a long-term goal of achieving co-operative parenting and shared responsibility…The FSG recommend that, at a very early stage in the process of parental separation, an ‘information assessment meeting’ (IAM) should take place through a Family Hub or similar non-court resource. At an IAM a Family professional will conduct an early assessment and triage the family’s needs.”

There are many other initiatives outlined in Sir Andrew McFarlane’s address and the ‘What About Me?’ report, and pilot projects which are planned to commence next year; details of which are beyond the scope of this article. However, there is a huge amount of anticipation as to whether this will now pave the way in achieving a better way to assist separated families in reaching a positive outcome regarding child arrangement disagreements. What does appear to be an overwhelming viewpoint, is the need for a more holistic approach when trying to resolve disagreements from what may be deep rooted and strong feelings, in sometimes extremely emotional parents often trying their best to find their way in life. To be given the necessary tools to be able to put the needs of the children first, must be a positive step in the right direction.

¹ https://www.judiciary.uk/wp-content/uploads/2021/10/Supporting-Famlilies-in-Conflict-Jersey.pdf