Mapping Paths to Family Justice

Resolving Family Disputes in Neoliberal Times

Anne Barlow, Rosemary Hunter, Janet Smithson, Jan Ewing

• Publisher: Palgrave Macmillan
• Year: 2017
• Print ISBN:
  9781137554048
• eBook ISBN:
  9781137554055
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Academics, postgraduate students and practitioners in the fields of family law, alternative dispute resolution, social work, social policy, access to justice and socio-legal studies. Also professionals involved in assisting divorcing and/or separating couples, and professionals from the alternative dispute resolution training sector.

1

Introduction

This is a book about the resolution of family disputes that arise from the end of marriages or marriage-like relationships. Our focus is on disputes between couples – whether married or cohabiting – over their finances and/or arrangements for their children, following the breakdown of their relationship, rather than on disputes that might arise within ongoing couple relationships. Post-separation disputes are the ‘bread and butter’ of family law. In fact, though, many couples deal with the consequences of their relationship breakdown without any kind of dispute. They sort things out between themselves and move on with their lives. Since this group flies below any official radar, it is difficult to put a figure on its size. The survey we conducted in 2011 (detailed in Chapter 3) suggested, however, that nationally, almost half of all couples divorcing or separating between 1996 and 2011 sought no legal advice about their situation, with couples separating from cohabitation less likely than divorcing couples to seek legal advice. Those who seek advice may then proceed, armed with that advice, to make their own arrangements. So those who end up in dispute may be a minority, but perhaps a substantial minority, of all divorcing and separating couples.

The things that people dispute about may also range widely. Family breakdown can be an emotionally devastating experience (e.g. Day Sclater 1999), and disputes can arise over issues such as lack of trust, feelings of betrayal or refusal to accept that the relationship is over. The focus of this book, however, is on disputes over practical arrangements for the future – how will the couple’s property and other assets be divided between them; will one partner continue to pay maintenance to the other party, and if so how much and for how long; with whom will the children live, and if they will live predominantly with one parent, what arrangements will be made for them to spend time with the other parent? These are matters which are, to some extent, regulated by law – by the Children Act 1989 in the case of arrangements for children and by the Matrimonial Causes Act 1973 in the case of financial arrangements for divorcing couples. There are other practical matters which may also be the subject of dispute but which we do not generally discuss. There may be a dispute over whether to get divorced and the grounds for divorce, but in practice, the vast majority of divorces are undefended. Disputes over child support occur more frequently, but during the period of our research, these were dealt with administratively, initially by the Child Maintenance and Enforcement Commission and subsequently by the Child Maintenance Service, which would determine the amount of child support owing according to a statutory formula, and could, if requested, also collect payments from the non-resident parent. Thus, disputes over child support had definite answers, whereas disputes over arrangements for finances and children were more dependent upon the circumstances of the particular family, and hence less readily determined.

The title and subtitle of the book, ‘Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times’, raise a number of questions. What are ‘neoliberal times’? How may family disputes be resolved and what different ‘paths’ may people take to do so? And what do we mean by ‘family justice’? This chapter addresses these questions. It first sets out what we mean by our three key concepts: ‘neoliberalism’, ‘family dispute resolution’ and ‘family justice’. The discussion of what we mean by ‘family justice’ includes an explanation of the critical feminist theoretical approach we take in this book. In brief, this means that our analysis pays consistent attention to issues of gender and power. We ask, what are the gender effects of the policies and practices we study, and how do they contribute to (or subvert) existing gendered power differentials? The chapter then proceeds to describe the neoliberal transformation of the family justice system in England and Wales between 1996 and 2014, providing the necessary context for our study.

Key concepts

Neoliberalism

Neoliberalism is a political philosophy which has taken hold globally since the late 1970s (Brown 2015; Harvey 2005; Oksala 2012: 117). Although it has been implemented differently in different countries, it has several core features. Its primary feature is a commitment to market values rather than welfare values. It follows from this that states and public services should be minimal in scope – hence, for example, the Thatcher government’s desire to ‘roll back the frontiers of the state’ (Stewart 2007: 28) – and that in the economic sphere, governments should promote private property rights, free markets and free trade (Harvey 2005). It also follows that in the social sphere, governments should promote an ethos of individualism and personal responsibility. Neoliberalism thus involves a broad governance agenda ‘that encourages both institutions and individuals to conform to the norms of the market’ (Larner 2000: 12). It requires subjects to assume responsibility for ‘navigating the social realm using rational choice and cost-benefit calculations grounded on market based principles’ (Brown 2006: 694; Hamann 2009: 37; Shamir 2008). Public policy may, in turn, employ a variety of techniques – encouragement, incentives, ‘nudges’ or coercion – in order to steer individual behaviour towards desired outcomes, to encourage certain choices and to discourage others (Dean 2002; Dilts 2011: 131). Thus, while retreating from direct intervention, the state continues to govern citizens at a distance via a range of regulatory practices (Larner 2000; Rose and Miller 1992).

In the UK, the Thatcher-Major, Blair-Brown and Cameron governments might all be classified as neoliberal. The Thatcher government focused on reducing the size of the state and promoting free markets through public sector cuts, privatisation, deregulation and diminishing the power of trade unions. The New Labour government from 1997 focused on making public services more efficient through the use of private sector management techniques (Powell 2008; Power 1997), the targeting of scarce public resources to those in greatest need and insistence on individual responsibilities and duties to the community in exchange for ‘the conditions of the good life’ (Bridgeman and Keating 2008: 6–7; Rose 2000: 1398). The 2010–15 Coalition government continued these trends with further privatisations and cuts to public services and to welfare in the name of ‘austerity’, and continuing emphasis on the responsibility of individual citizens to work and to be self-sufficient, backed by incentives, coercive measures and the discursive stigmatisation of welfare recipients (Sommerlad 2015: 245). Neoliberal times thus span the entire period covered by this study – 1996–2014. Furthermore, although there have been some shifts of emphasis with different governments, neoliberal ideology shows no sign of waning. Indeed, while the family justice system was a relatively late target of neoliberal policy attention, it has come in for sustained attention in recent years, as outlined below, to the extent that it is now possible to say that it has undergone a neoliberal transformation.

Family dispute resolution

Traditionally, legal disputes have been decided in court, or by negotiations between lawyers in the shadow of court proceedings. The ‘alternative dispute resolution’ (ADR) movement emerged in the United States in the 1960s and 1970s and was transplanted from there to many other countries, including the UK. A range of different ‘alternatives’ to adjudication have developed, but our focus is on ‘facilitative’ processes such as mediation and conciliation, which involve the intervention of a neutral third party who, rather than imposing a decision on the parties as a judge would do, assists the parties to negotiate a resolution between themselves, either alone or with the involvement of their lawyers. The key differences from adjudication that ADR offers are that it is informal, non-adversarial, voluntary, confidential and the parties remain in control of decision-making. The advantages of ‘private ordering’ are said to be that it enhances party autonomy by empowering them to make their own decisions rather than having decision-making taken out of their hands; it is quicker and cheaper than traditional court proceedings; it aims to contain and reduce conflict, to take a conciliatory approach and find common ground between the parties, rather than inflaming conflict as adversarial court proceedings are prone to do; it can produce better, more creative results than would be possible in court proceedings; and agreements reached between the parties are more likely to endure than those imposed by a judge (e.g. King et al. 2009: 91–3; Mair et al. 2015: 175–6). For these reasons, both the process and the outcomes of ADR are considered likely to produce greater party satisfaction than are court proceedings.

The non-adversarial approach of ADR was seen to offer particular benefits in the field of family law (see e.g. Emery 2012; Parkinson 2014; Roberts 2014). A process that aimed to contain and reduce conflict would not only be better for the parties themselves, but also for their children, who would thereby avoid exposure to the damaging effects of parental conflict. Further, family mediation developed with a particular focus on improving communication and developing cooperation between the parties, skills which would help to preserve and enhance the parties’ ongoing co-parenting relationship. Family mediation in England and Wales generally involves face-to-face discussions between the parties, facilitated by an impartial mediator. It generally takes a ‘settlement-seeking’ approach, focused on reaching agreement about future arrangements, based primarily on what is in the best interests of the children (Parkinson 2014).

At the same time, lawyers also grasped the benefits of non-adversarialism in the context of family disputes and, as discussed further below, there was a clear move by family solicitors towards a more conciliatory approach, with an emphasis on not inflaming conflict and negotiating with the other side (usually by correspondence rather than face to face) to reach a resolution without the need for court proceedings. In this context, a court application will only be initiated if negotiations break down, or if it is considered necessary to focus the mind of a reluctant party within a timetable provided by the court. The key differences between solicitor negotiations and mediation are that while the mediator is a neutral third party facilitating the parties’ own negotiations, each solicitor in solicitor negotiations provides partisan support for their client’s interests and can also act as a buffer between the client and the other side. Moreover, solicitors can give their clients legal advice, while mediators cannot. Mediators may give both parties information about legal principles and how a court would approach their case, but they cannot give individual advice about legal rights or entitlements.

Two further additions to the forms of out-of-court family dispute resolution in England and Wales have been collaborative law and arbitration. Collaborative law is a type of dispute resolution which has developed specifically within family law (again, initially in the United States). It combines elements of both solicitor negotiations and mediation, in that each party has their own solicitor, but negotiations take place face to face in four-way meetings rather than at a distance. All participants agree at the outset that they will negotiate collaboratively, in an effort to reach an outcome that is best for the whole family, and crucially, that they will not resort to court proceedings. The solicitors’ partisan role is therefore somewhat muted, although they can still give legal advice, and will also meet separately with their own clients to discuss goals and concerns. All participants have a strong incentive to reach a consensual settlement as the participation agreement specifies that if either party decides to back out of the collaborative process and initiate court proceedings, then both lawyers will cease to act and both clients must therefore instruct new solicitors.

Finally, at the time of our study, arbitration was available for disputes over finances (but not children) in England and Wales.¹ Unlike the other three forms of out-of-court dispute resolution, which all involve negotiations between the parties and/or their lawyers, arbitration replaces the public court system with a private judge who makes a final and binding determination of the dispute. The arbitrator is appointed by agreement between the parties, and the process is confidential, less formal, more flexible and quicker than normal court proceedings, which can also make it more cost-effective. We did not include arbitration in our study because of its essential difference from the other dispute resolution processes, plus the fact that it was very newly available and little used at the time we conducted our research, and the fact that it did not cover all kinds of family law disputes.

When we refer to ‘family dispute resolution’ (FDR) in this book, therefore, we mean methods of resolving family disputes out of court, and specifically, the three methods whereby parties and/or their lawyers engage in negotiations to reach an agreed settlement: solicitor negotiations, mediation and collaborative law. Each of these methods is discussed further in Chapter 2.

(Family) justice

The term ‘family justice’ has two different meanings, both in general and in this book. The first meaning is adjectival, as used in the phrases ‘family justice system’, ‘family justice professional’ or ‘Family Justice Council’. It refers broadly to family law and to all the people and institutions associated with its operation, or, in the words of Eekelaar and Maclean, ‘those institutions whose primary purpose is to define, protect and enforce the legal rights family members have as family members and to resolve conflicts between family members concerning those rights’ (2013: 8). It includes family courts, judges, magistrates and legal advisers, family barristers and solicitors, Cafcass² officers, mediation services, psychological experts, providers of court-ordered contact activities, and local authority lawyers and social workers involved in care proceedings.

The second meaning is as a noun, ‘family justice’. This is what parties (hopefully) receive from the family justice system. The emphasis is on the word ‘justice’, and it has a normative content. In other words, not every element of the family justice process and not every outcome parties get from it can necessarily be described as ‘just’. Family dispute resolution follows particular procedures to produce agreements and family courts follow particular procedures to make decisions, but the mere fact of those procedures and of an agreement or a decision does not tell us whether they possess the quality of ‘justice’. We have to measure them against a further yardstick to decide that.

This is not a universally accepted view. Many people think that whatever outcome emerges from a family justice process is by definition family justice. In other words, they do not see a need for any separate inquiry into the nature of either the process or the outcome; they accept the legitimacy of the process and, consequently, of the outcomes it produces (Eekelaar and Maclean 2013: 17). Some people would make this argument specifically in relation to mediation and collaborative law, where both parties have voluntarily entered into the process and voluntarily reached an agreement that they consider meets both of their interests, as a result of which the agreement should be respected. We disagree. We take the view that justice is not just about promoting parties’ autonomy and self-determination. Rather, it has a separate meaning against which both processes and outcomes can (and should) be measured.

We take this view on the basis that if decisions are being made about how to resolve family disputes within the context of family law (as opposed to the people mentioned earlier who sort out post-separation issues between themselves without dispute), then society as well as the individuals involved has an interest in the outcome. As John Eekelaar puts it, ‘Family justice is concerned with more than simply bargaining.… It is concerned with upholding and underwriting some elemental features of personal relationships’ (2015: 353). Family law does not necessarily reflect the arrangements people would make if left to their own devices, but rather is concerned to express and uphold important social values (Leckey 2013: 187). Jonathan Herring has argued, for example, that post-divorce financial arrangements cannot simply be seen as a ‘private’ matter, since ‘the wider community has a legitimate and powerful interest’ in the distribution of income and assets between former spouses. These include interests in avoiding parties becoming unnecessarily dependent on welfare benefits; encouraging family members to engage in the care of children, elderly parents and others requiring care despite the financial risks involved; sending a message about the value of care work; combating gender inequality and post-divorce poverty for women due to their general assumption of the greater share of caring labour in the family; and promoting values of mutual sharing and cooperative interdependence in marriage rather than market individualism (Herring 2005). Likewise, society has an interest in ensuring that children’s welfare is promoted after their parents separate, and that they are not deprived of resources or made unnecessarily dependent on the state. Decisions made by individuals in family disputes operate within a public, social context and have public, social consequences (Diduck 2014b: 618).

Fundamentally, individual and social well-being is not only a private but also a public responsibility (Diduck 2010: 204). Indeed, from a feminist perspective, so-called ‘private’ family relations are a matter of crucial public and political importance, since they are a key site for the balancing of social and economic power (Diduck and O’Donovan 2006: 1). Susan Moller Okin (1989) has also drawn attention to the importance of practising justice within the family as a means of nurturing children’s sense of justice. We therefore do not accept the contention that in resolving family disputes ‘there are no rights that cannot be compromised and that every conflict represents merely a clash of morally equivalent interests’ (Genn 2010: 25). To the extent that autonomy in dispute resolution entails freedom from law and its values, freedom from social obligations, freedom to pursue one’s own interests and exert one’s own power regardless of the disadvantage to others, or simply reconciling the weaker party to an unjust fate, then this, in our view, is the antithesis of justice (Diduck 2014a: 102, 112; Smith 2015: 23).

So what, then, is the normative meaning of ‘family justice’? This has both a procedural aspect and a substantive aspect. A just process is one which is ‘readily accessible and effective’, which provides reasonable access to legal advice and representation, to appropriate form(s) of dispute resolution, and to the courts, without undue delay or cost and not dependent on personal resources (Genn 2010: 18, 115). It is also a process which allows for equal participation, for the voices of the parties – and of children who are old enough to express a view – to be heard with equal respect, which seeks to overcome rather than perpetuate or magnify power imbalances, and which does not exert undue pressure (including financial pressure) to compromise legal rights (Eekelaar and Maclean 2013: 8; Grillo 1991; Wall-bank 2014: 92).

Substantive justice is more difficult to define. Eekelaar and Maclean argue that the outcomes of family dispute resolution should be assessed against the law in force at the time, since legal rules, rights and entitlements represent ‘the values, goals and policies of the social context in which the dispute arises’ (2013: 17). They acknowledge, but dismiss, two difficulties with this position. First, it fails to subject the legal rules themselves to a yardstick of justice. But legal rules are not always just. For example, a rule that specified that men should always receive two-thirds of the property or that children should always spend ha...

Table of contents

• Cover
• Halftitle
• Title Page
• Copyright
• Contents
• List of Figures
• List of Tables
• Authors’ Note
• Acknowledgements
• List of Abbreviations
• 1 Introduction
• 2 The Three FDRs
• 3 The Research Project
• 4 Awareness of FDRs: The Policy Challenge
• 5 Entering Family Dispute Resolution
• 6 Experiences of FDRs
• 7 Outcomes of FDRs
• 8 ‘Just’ Settlements?
• 9 Conclusion
• References
• Index