To 2020 and beyond
Sebastian Burrows looks ahead to the next decade and the challenges for lawyers as family law and practice evolves
I clearly recall a memory from my university days of being on a minibus in 1999, on the way to the final of the Family Law Reports national mooting competition. On the long drive, I found myself in a heated debate with a fellow student (now a commercial lawyer) on family law. I remember his words clearly. He said: “I don’t think the law has any place interfering in the family.” This comment shocks me now as much as it did then. Of all the fields of law, what else is more important than dispute resolution around issues at the core of our lives? However, at this present time of fast evolution in the world of family law, that throwaway comment has more significance than I thought. As we embark on the next decade, what the future has in store for family lawyers is not to be disregarded. The proportion of family law work in the courts has greatly increased in recent years and so has the pressure on family lawyers. THE FAMILY COURTS TODAY The Conservative Party has just won a landslide victory following December’s general election. Of course, the focus is on Brexit then the financial support of the NHS. Further down the pecking order are Greta Thunberg’s admirable voice and the climate emergency. Further down the list is the plight of the justice system. We are all uncool fat cats, so it goes without saying that for politicians to argue on behalf of the justice system would amount to lining our pockets. The last decade has seen the family courts and county courts reduce in number as more and more courts close. The family courts have been regionalised. The focusing of energy in the court system, particularly in family law, was welcomed – if a little sceptically. But it seems the chickens have come home to roost. The regional family courts are failing to keep up with workloads with tens of thousands of applications made each year. Family cases, particularly divorce and children cases, now dwarf other caseloads for most of the courts. So clearly, the law does have a role to play in the family. Litigants in person find themselves, often through no choice of their own, hoping for justice but often frustrated as they have to interpret the law and procedural rules for themselves. Fortunately, alternative dispute resolution (ADR) has flourished over the last decade. Mediation, in particular, has found a solid home within family law. Although there are many practitioners who still treat mediation as a hurdle to overcome, the number is reducing. It is a valuable part of our holistic practice as family lawyers and that is the view over the brow of the hill into the future. Family lawyers are different to conveyancers and private client lawyers. We do not transact: we actively resolve from the start of cases to their conclusions. Sometimes that involves heavy litigation but finding solutions should never fall off our radar. Proceedings and constructive dispute resolution are not mutually exclusive. The future of family law in 2020 and beyond must involve flexibility, imagination and resolution (and Resolution – the family law organisation). With Sir Andrew McFarlane as president of the Family Division, we have a champion at the helm. However, we have a fundamental struggle that comes from the lack of government funding. It is inevitable that the legal profession’s ability to function depends on politics, but it also seems inevitable that we will not enjoy a windfall of investment or political prioritisation. We must therefore use our greatest strength as family lawyers – our adaptability. Far from us plugging the gaps left by a shortfall in funding and a grindingly slow court system, private family dispute resolution (FDR), arbitration, mediation, round-table meetings, and so on provide challenging and rewarding alternatives to litigation. While they are constructive and progressive, to some extent we are disguising the problem. LAW REFORM The last decade cannot be passed over without acknowledging the impact that Resolution has had on family law. The pressure that it has maintained on government is immense. But the organisation’s instrumental role in giving life to the divorce, dissolution and separation bill shows its clout in the face of the unfashionable image of law as a subject for political attention. No fault divorce is no longer seen as an affront to morality. It represents the law adapting to become kinder. The world has changed and as family lawyers we are part of changes to the law that follow. Family law seems to be unique in its humane evolution, particularly in light of what some consider to be a growth in right-wing politics. Reform of divorce law has been tried before but failed. Since then, family law practice has changed. What other field has such fantastic gender equality statistics among its practitioners; and what other field has adapted to change as much as family law? None, I would say. The divorce bill has been promised royal assent in the new parliament and our fingers remain crossed. But there is still work to be done. Cohabitation law is ripe for reform and the pressure builds for change and clarity there. Will the 2020s be the decade in which we look back on section 14 of The Trusts of Land and Appointment of Trustees Act with a fading sense of apprehension? I suspect it will. THE FUTURE I am proud to be part of a progressive firm that takes mental health seriously – but this is as it should be. We are humans helping other humans, often at a time of distress. Mental health is perhaps the greatest health focus for this new decade and family law is ahead of other fields in tackling mental health issues among practitioners. We cannot expect to help others through crisis and trauma without that also affecting us. The more we look out for each other, the stronger we will become in our ability to advise clients and find solutions. Readers may recall an early episode of The Crown, in which a courtier’s wife visits a solicitor for divorce advice. It is a master class in how not to behave. It represents the past but works well to show us how far we have come and the significance of the changes afoot with which we must all advance. Our tool of choice must therefore be empathy for our clients and for our colleagues. Unlike the solicitor in The Crown, we are not outdated butchers of families. We are not glued to procedures and pigeonholing clients. We practise in the overlap in the Venn diagram of law and life. We are troubleshooters and problem solvers – and should be proud that we are. The future for family law in the 2020s requires us to be as sharp and focused as ever but to ensure it is combined with kindness. With this in our armoury, we will be equipped – whatever changes our profession and family law may experience.