About the speaker

Mavis Maclean CBE has carried out Socio Legal research in Oxford since 1974, and was a founding director of OXFLAP in 2001. She has acted as the Academic Adviser to the Lord Chancellor’s Department, and served as a panel member on the Bristol Royal Infirmary Inquiry between 1998 and 2001, a major public inquiry into the National Health Service. She is a Senior Research Fellow of St Hilda's College and a Research Associate at DSPI. In 1993 she was elected President of the Research Committee for the Sociology of Law of the International Sociological Association, in 2000 a Trustee of the Law and Society Association, in 2002 a Fellow of the Royal Society of Arts and in 2012 of the Academy of Social Sciences . She was awarded the first SLSA Annual Prize for Contribution to the Socio Legal Community in 2012. In 2013 she was made an Honorary Bencher of Middle Temple. She has served on a number of grant making committees, notably the Children and Family Justice Committee, Nuffield Foundation, the Research Liaison Group for Children’s Services, Department of Health, and the Joseph Rowntree Foundation Social Policy Committee. She was a member of the Lord Chancellor’s Legal Aid Advisory Committee 1992-4, and is a Fellow of the International Institute for the Sociology of Law, Onati, Spain. She chairs the TCRU Advisory Committee at the Institute of Education, and is a member of the Management Committee of the Centre for Family Research, Cambridge. She is joint editor of the Journal of Social Welfare and Family Law, and a member of the editorial boards of the International Journal of Law, Policy and the Family and the International Journal of Law in Context. Her research interests are Family Law and Family Policy, particularly from a comparative perspective.

Recent work includes an Onati Workshop on Digital Family Justice in 2018, followed by the book edited by Maclean with Diksterhuis and Treloar in 2019, describing the failure of mediation and the rapid ongoing digitalisation of access to family justice in countries from Turkey to Canada. Following the Legal Aid Punishment and Sentencing of Offenders Act 2012 Maclean with Eekelaar carried out a study of the response to new needs for legal support from government, the professions and the voluntary sector. Maclean subsequently contributed to the Post Implementation Review of the Act and the Legal Support initiative, see also “After the Act” Maclean and Eekelaar, Oxford, Hart Bloomsbury paperback 2020. The latest publication in the Onati series “What is a family court for?” which assesses the role and purpose of the court in a number of jurisdictions, is forthcoming from Hart Bloomsbury. 

Current work focusses on the relationship between welfare and justice in the family justice system, with respect to the welfare and protection of those without legal capacity due to age or mental incapacity. An Onati Workshop is planned for 2022.

Abstract

This contribution from the sociology of family law will discuss the changing role of the family justice system in in common law jurisdictions , including England and Wales, and Australia, in the context of social change.

There is widespread concern about the increased demand for access to the courts to resolve the growing numbers of problems arising from separation and divorce, associated with financial and parenting disputes. Which direction will policy take? Are we likely to see attempts to facilitate increased access to justice in cases of dispute? This may be through a court, or through non court means such as mediation. Or is the policy emphasis likely to focus more on the development of ways of avoiding problems becoming disputes?

If we look separately at causes of dispute and ways of avoiding the need for court, what are the options?

Many jurisdictions are finding it hard to meet the increased demand for access to the courts for resolution of family disputes which has resulted from changes in society, higher divorce rates, the increase in less clearly regulated partner relationships such as cohabitation , changing attitudes and expectations about parenting after divorce including access to sufficient resources to house children by one parent, and the increased awareness of domestic abuse including not only physical abuse but also coercive control.

In this context we can observe a range of responses from policy makers , driven by the need to control public expenditure, even where SROI (social return on investment) is calculated. The development of family mediation is often presented as of value in increasing individual freedom to reach individually satisfactory outcomes and limiting the development of hostility . Unfortunately it has not been as effective as hoped in reducing demand for the help of the courts ( see for example UK, Australia, France, ) as, for example, it is not possible to screen effectively for coercive control /domestic abuse in a first meeting of both parties with a stranger .

But recent Australian experience may be of particular interest.

Following a comprehensive review of the Family Justice system in Australia policy makers have looked carefully at what lies behind the disputes being brought to court: 1. dividing the value of the family home and securing accommodation for both parties and the children, and 2. Parenting.

In Australia as in the UK home ownership is widespread, and a flexible rental housing market is absent . This leads to many disputes about how to afford post separation housing for both the parent with the children as well the parent who may need to accommodate the children from time to time. The other major cause of action was parenting time, with conflict over how long and when a child spends time with each parent.

Following the limited success of FDR the Australian Government has decided to address the sources of conflict and to review the relevant legislation eg by removing presumptions re parenting, and adding a presumption re housing that it will be presumed that both parties made an equal contribution. We await the outcomes with interest, of using law not just to resolve but to avoid problems.... a new approach !

The link to "What is a Family Justice System For?" /bloomsburycp3.codemantra.com/watermark/6331dadacff47e00012f1806