A Jurisdiction in Search of a Mission: Family Proceedings in England and Wales

AuthorJohn Eekelaar
DOIhttp://doi.org/10.1111/j.1468-2230.1994.tb01980.x
Publication Date01 Nov 1994
THE
MODERN
LAW
REVIEW
Volume
57
November
1994
No.
6
A
Jurisdiction in Search
of
a Mission: Family
Proceedings
in
England and Wales
John
Eekebr*
Introduction
In
1860,
shortly after the civil courts in England had acquired jurisdiction to grant
divorces, an eminent divorce lawyer, MacQueen, wrote scathingly about the way
divorce cases were dealt with.’ All a person had to do was to find a lawyer to
draw up a petition and as soon as a ‘citation’ (incorporating the allegations against
the respondent) was issued, litigation became inevitable; the husband and wife
‘prepare for combat,’ causing friends, relatives and witnesses to share in their
humiliation. It was very different, he observed, under the Code Napolhn. There
the parties had first to appear before a judge, who would soon discover if the case
was serious or frivolous.
He points out the difficulties, perhaps insuperable ones. He shows the
injury
that must result
to
the
children, and he
terrifies
the mother by
telling
her that they may
be
taken from her. He
enlarges on consequences.
In
an
hour,
by the
force
of
reasoning and persuasion, he
saves the
court
an mvestigation which
might
have
lasted
days.
This,
however,
is
but
a
moderate
part
of
the great
good
he
does
.
. .
he promotes the
great
cause
of
sanctity
in domestic relati~ns.~
MacQueen observes that it would
be
useful to attempt a reconciliation whenever
the wife was the complaining party because ‘there are few cases in which a wife
may not forgive her husband with honour to herself and with advantage to her
family,’ whereas if a husband was the petitioner, it was
only
to be expected that the
case would proceed.
The remarks of MacQueen
are
a sharp reminder that, within families, the idea of
justice is particularly complex. They show how difficult it has been, and may still
be,
to apply principles within families which are usually associated with justice
between individuals, such as giving each person his or her due, or treating each
person on a basis of equality.
This
is
because wider interests are seen to be at stake.
The welfare of the family as a whole is seen to qualify significantly, and sometimes
to override, the interests of its individual members to receive ‘justice’; and this is
*Fellow
of
Pembroke College,
Oxford.
Paper
given
at
the ‘Families
and
Justice’ Conference, Brussels
1994.
1
MacQueen,
A
Practical Treatise
on
the
Law
of
Marriage, Divorce and Legitimacy as Administered in
2
MacQueen,
op
cit
n
1,
pp
v, vi.
the
Divorce
Court
and
the House
of
Lords
(London,
1860);
Preface.
0
The
Modern
Law Review
Limited
1994
(MLR
57:6,
November). Published by Blackwell Publishem.
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[Vol.
57
so
because the welfare of the family is seen to buttress the well-being of the
existing social structure. This perception is still very strong, although nowadays it
is more commonly expressed as a concern for the welfare of children, rather than
of the family itself, or of the state. MacQueen’s observations, which no doubt
reflected the values commonly held at the time, should also serve to make us
cautious when we consider relegating individual claims to justice beneath an
institutionalised perception of the common good. Although MacQueen himself
clearly thought the
dirigiste
system of the Code Napoleon, as he saw it, was
superior to the combative procedure in England, from our modem perspective and
assumptions about women’s rights, we might not be so sure.
It would be a mistake, however, to attribute the differences between common
law and continental European procedures in
family
matters as simply a
manifestation of the
adversarialhnquisitorial
divide. As Twining has ~bserved,~
most systems are hybrids. Family proceedings in England have always had a
distinctive character that has set them apart from ordinary adversarial
proceeding^.^
They have been seen, by the courts themselves, and by policy
makers, as having a mission which goes beyond simply adjudicating between
adversaries. The purpose of this article is to explore how this mission has been
perceived since the introduction of judicial divorce in
1858
and to offer some
reflections on what it might be in the future.
A
The Divorce Jurisdiction
(a) The Protectionist Vision: the
Court
as
Guardian
of
Marriage
and Morals
Prior to
1858,
marriages could be dissolved only by a procedure culminating in an
Act of Parliament, but formal separation short of dissolution could be achieved by
a decree of ‘divorce’
a mensa et thoro
granted by an Ecclesiastical When
the jurisdiction to dissolve marriages was conferred on the civil courts by the
Matrimonial Causes Act
1857,
the grounds for divorce and the principles upon
which they were applied approximated as closely as possible to Parliamentary
practice and the doctrines developed
in
the Ecclesiastical courts.
Divorce at that time could be granted only on the ground of adultery, although if
a wife was to divorce her husband, she had to show that his adultery was
accompanied by aggravating circumstances.6 The most characteristic feature
which the divorce courts inherited, both from the Parliamentary system and from
the Ecclesiastical courts, was the discretion to refuse a decree even when an
offence had been committed by the respondent if the petitioner, too, had
committed adultery
(recrimination),
and the duty to refuse it if the petitioner
had encouraged the respondent’s adultery
(connivance)
or forgiven it
3
Twining, ‘Alternative
to
What? Theories of Litigation, Procedure and Dispute Settlement in Anglo-
American Jurisprudence: Some Neglected Classics’ (1993)
56
MLR 380.
4
This is particularly true with regard
to
child protection proceedings:
see,
for example,
Oxfordshire
County
Council
v
M
[1994]
1
FLR 175, where
the
Court of Appeal held that
in
such proceedings the
courts have power
to
‘override professional privilege’ and require the disclosure of expert opinion
received by a
party
whether favourable to that party or not.
5 For a
full
account of these procedures,
see
Gibson,
Dissolving
Wedlock
(London: Routledge, 1993)
ch
3.
6
Divorce and Matrimonial Causes Act 1857,
s
27.
840
0
The
Modern
Law Review Limited
1994

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