Judicial independence and the restructuring of family courts and their support services [2012] CFLQ 333

Following the Family Justice Review and the government’s response to it, this article examines proposals for restructuring the family justice system with a new unified Family Court for England and Wales. The reforms raise questions about the principle of judicial independence and separation of powers in the operation of the new court. First, the proposals envisage a stronger leadership role for the judiciary in order to fulfil the aim of reducing current long delays in cases deciding children’s future care. This role will require the judiciary to head teams reliant on multidisciplinary work between themselves, court staff, welfare support services and mediators. Policies to remove legal aid and divert many more parents to mediation mean that mediators’ current functions will soon be extended. We argue that all these support services should therefore be recognised as associated with the judicial function. Secondly, the reforms are to be implemented through a new system headed by a Family Justice Board, although the court service and the judiciary are already operating a Family Business Authority and have produced proposals for the modernisation of family justice. There is therefore potential for confusion as to the remit of these bodies and the extent to which responsibility for family justice lies with the executive or judiciary. This will need to be clarified if the Family Court is to operate effectively.