Decision‐Making for Life Apart
| Published date | 01 September 1995 |
| Date | 01 September 1995 |
| Author | Simon Roberts |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02045.x |
The Modem Law Review
[Vol.
58
Decision-Making
for
Life
Apart
Simon Roberts
*
. .
.
he (the layman) can understand the basic character of the English way of legal thinking,
he can identify himself with it and, above
all,
can make his peace with it by retaining once
and for all a solicitor as his legal father confessor for all contingencies of life (Max Weber,
Economy
and
Society,
1922’).
The tendency
in
England and Wales is to use a solicitor’s office as the automatic first port of
call without first becoming aware
of
the
range
of
services and
the
range
of
options which are
available to separating and divorcing couples
(Looking to the Future,
1995,
para
7.3).
For a hundred years following the Matrimonial Causes Act of
1857,
the statute
which made divorce in modern England a practical possibility, the management of
divorce lay firmly in the hands of lawyers and was conceptualised by them as
‘litigation.’ The reordering of finance and property and the arrangements
surrounding children, the processing of the divorce itself with its final moment in
adjudication, were all controlled by lawyers and dealt with in accordance with
their norms and understandings. By
the
1960s,
the goal of ‘welfare’ was becoming
firmly implanted alongside ‘justice’
in
the ideology of family law, legitimating
further forms
of
professional intervention; but this
shift
did not immediately
threaten lawyer domination. Even when family dispute institutions were re-
examined in the Finer Report of
1974,2
the future was
still
seen primarily in
terms of
adjudication.
While novel ‘conciliation’ procedures were proposed, it
was made clear that these should be ‘conducted through the and primary
attention still focused on what the ‘family court’ should look like. This was to be a
user-friendly institution, characterised by procedural informality, somehow non-
adversarial, and building in a welfare element.
Today, twenty years later, the family court remains unrealised, and the once
taken-for-granted dyad of justice and welfare is showing signs of its age; the
delegation of family disputing to lawyers and court welfare officials no longer
seems the only way forward. One aspiration, at least on the part of some
disputants, is to regain control, to retreat back from professional management of
family transition and to escape what is seen as a conflict-raising dependency
inherent
in
resort to lawyers and litigation. This mood strikes a chord upon some
strands of conservative ideology and coincides with the desperate efforts of
Government to reduce spending on legal aid. These rather diverse currents have
already converged in the shape of the Children Act
1989,
with its stress on parental
responsibility and correspondingly reduced reliance on professional intervention.
In the handling of family disputes generally, three broad developments are
observable over the years since Finer. First, a new professional group has begun to
emerge, offering institutionalised support for party negotiations away from the
surveillance and control of the legal profession. At first, its growth took place
under the indistinct label of ‘conciliation,’ already trailered in the Finer Report.
Latterly the form of intervention involved has clarified as ‘mediation’ and there is
now a growing network of some
60
voluntary sector services offering mediation in
*Law
Department, London School
of
Economics.
1
Roth
and Wittich
(4s)
(Berkeley: University of California
Press,
1978) p 891.
2
Report
of
the Committee on One Parent Families
(London, 1974) Cmnd 5629.
3
ibidp 185.
714
0
The
Modem
Law
Review Limited
1995
To continue reading
Request your trial