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Cross CurrentsFamily Law and Policy in the US and England$

Sanford N. Katz, John Eekelaar, and Mavis MacLean

Print publication date: 2000

Print ISBN-13: 9780198268208

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198268208.001.0001

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Access to Justice in Family Matters in Post-War Britain

Access to Justice in Family Matters in Post-War Britain

Chapter:
(p.532) (p.533) 24 Access to Justice in Family Matters in Post-War Britain
Source:
Cross Currents
Author(s):

Mavis Maclean

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198268208.003.0024

Abstract and Keywords

In 1948, T. H. Marshall argued that the acceptance of state funding for legal services was a necessary condition for the full and equal exercise of civil rights which legitimises Britain’s democratic form of government. The pressing need for help with divorce following the social stress of World War II provided the stimulus for a new system of access to justice not only in family matters but also in a far wider range of civil disputes. Family justice was to underpin a wider movement towards social equality and individual well-being, because the divorce lawyers played a key part in the setting-up of the Legal Aid Scheme, a publicly funded legal service. The story of access to justice in family matters over the last fifty years can well be told as a tale of containing public expenditure in the face of rising demand. A combination of administrative procedures has been adopted to deal with child support and encouragement to try alternative dispute resolution on divorce for those seeking access to family justice.

Keywords:   Britain, legal services, legal aid, divorce, civil disputes, family justice, Legal Aid Scheme, public expenditure, child support, alternative dispute resolution

Introduction

In 1948 T. H. Marshall gave the seminal lecture in Cambridge entitled ‘Citizenship and Social Class’1 in which he argued that the acceptance of state funding for legal services was a necessary condition for the full and equal exercise of civil rights which legitimizes our democratic form of government. To make rights effective they must be accessible to all. The pressing need for help with divorce following the social stress of World War II provided the stimulus for a new system of access to justice not only in family matters but also in a far wider range of civil disputes. Family justice was to underpin a wider movement towards social equality and individual well-being, because the divorce lawyers played a key part in the setting-up of the Legal Aid Scheme, a publicly funded legal service.

In the immediate post-war period collectivist welfare provision was at its height. But as we move towards an individually oriented society in which the high aspirations associated with marriage lead to high rates of divorce and the resolution of private quarrels at public expense, the high costs associated with demand-led provision of legal aid have been questioned. No government is now willing to go on providing one of the most expensive access to justice systems in the world. In 1990 according to the French Conseil d’Etat,2 England and Wales were spending £9.80 per head of population on legal aid compared with £3 in Germany and 70 pence in France. The story of access to justice in family matters over the last fifty years can well be told as a tale of containing public expenditure in the face of rising demand.

This chapter will describe access to the different forms of professional intervention in family matters which have developed over the last fifty years, and point up the move away from courts and lawyers as the preferred mode of intervention for those in need of public subsidy. Instead (p.534) we have seen, the adoption of a combination of administrative procedures for dealing with child support and encouragement to try alternative forms of dispute resolution on divorce for those seeking access to family justice.

Post-War Crisis Management: Divorce Lawyers and the Rise and Fall of Legal Aid

As early as 1912 the Gorell Commission3 had highlighted the number of poor but honest artisans whose marriages had broken down and whose only hope of respectability in order to avoid the social stigma of adultery, bigamy or bastardy was divorce. The only remedies available to them lay in the limited jurisdiction of the magistrates’ courts to make financial orders between separated spouses. The Commission had suggested offering cheap divorce in the county courts, but the Church and the Bar had vigorously opposed this. Instead a poor persons’ procedure had been set up by the Bar to help the very poor to obtain a High Court divorce. When this procedure became unable to cope with the growing demand resulting from wartime conditions, it was replaced by temporary legal aid sections run by the services, and a service divorce department staffed by one salaried solicitor for the Law Society. By 1947 there were twenty-seven salaried units run by the Law Society in nine areas, handling both service and civilian cases. At this time the divorce rate was ten times what it had been immediately before the war (0.45 per thousand couples in 1935 had divorced compared with 5.6 per thousand in 1947).

When the legal aid scheme was established in 1950 on the recommendation of the Rushcliffe Committee4 it constituted a part of post-war reconstruction. Tamara Goriely5 places the development squarely within the creation of the welfare state, at a time of hope and social solidarity The aim was not to provide minimum benefits to the poor, but to offer equal benefits to all. The Rushcliffe Committee did not envisage that legal aid would be confined to ‘those normally classed as poor’. But when the Law Society expressed anxiety about potential encroachment by the scheme into work for private paying clients, a compromise was reached. A means test would remain but the eligibility criteria would be generous, embracing almost 80 per cent of the population.

At a time of confidence in public service following the wartime period during which eight million people had joined the armed services and (p.535) almost three-quarters of a million had become civil servants, there was an acceptance and appreciation of state control and the effectiveness of working together in a number of spheres. The Cabinet was discussing grouping doctors in health centres run by local authorities, where they would be paid a salary rather than a capitation fee. In 1948, however, as Goriely points out, Aneurin Bevan, the creator of the National Health Service, was critical of the Lord Chancellor for giving in to the Law Society and allowing a greater role for the legal profession in the running of legal services than that secured by the medical profession in health services. Rushcliffe had proposed a salaried divorce department, which would be expected to use almost half of the legal aid budget (44 per cent). Careful lobbying by the Law Society however had resulted in the continuation of access to solicitors by clients in the normal way, the only difference being that the state would contribute towards the bill on a fee for service basis.

However, the divorce system, inherited from the introduction of judicial divorce in 1858, proved unable to cope with the course of events which unfolded in the twenty-five years following the establishment of the legal aid system. Divorce was thought to be such a serious matter that only the High Court should be empowered to grant a decree of divorce.6 The Denning Report (1946–7)7 on Procedure in Matrimonial Causes had stated that ‘the gravity of divorce…affecting…the family life, the status of the parties, the interests of their children, and the interests of the State in the social and moral well being of its citizens’ required that it be determined at the highest level of the judicial hierarchy. However, the demand for divorce was such that it threatened to overwhelm the judges of the Probate, Divorce and Admiralty Division of the High Court. A great deal of the judicial work associated with divorce was therefore delegated to county court judges and barristers sitting as Commissioners in divorce. The role of the lawyer was central in what was still a divorce trial, where ‘the central tenet of the divorce law was punishment and reward’.8 A matrimonial offence had to be established before a decree could be granted, though the practice of exercising discretion concerning the adultery of a petitioner was gradually increasing. The court more and more often found itself in the position of pronouncing a decree against a guilty respondent at the request of a guilty petitioner. The flavour was well captured by a contemporary divorce barrister:

(p.536) Large incomes can be made at the Bar out of practices which consist almost entirely of undefended divorces. The hearing of an undefended suit commonly takes between ten and fifteen minutes, though much higher speeds are possible. Counsel are paid at an approximate rate of 12s. 6d per minute for asking a string of leading questions. The paperwork involved in settling documents, advising on evidence, and the like can be done by an experienced practitioner almost in his sleep. Some of it indeed can be mass produced; before the war one of the busiest members of the Probate and Divorce Bar used to settle a divorce petition simply by filling in half a dozen blanks in a mimeographed form from the stock which he carried in his chambers, Undefended divorces also provide useful initial training in court work for young men who are just starting at the Bar.9

In 1953 the House of Lords enunciated five considerations which the court should have in mind when exercising its discretion. These included the interest of the children of the marriage, the interests of the petitioner and his partner and their possible future marriage and ability to live respectably, the possibility of reconciliation, and the interests of the community at large ‘which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down’.10 It is clear that the courts were by that time attaching great significance to the fact of breakdown. As the Finer Committee said, ‘the reality was that thousands passing through the divorce courts were obtaining consensual decrees under a system under which they were theoretically prohibited’. The new-legal aid system, established originally to help servicemen whose marriages had broken down in wartime, enabled many more petitioners to achieve access to the courts. But in the Finer Committee’s view it also helped to push forward the move towards divorce reform, and away from the divorce trial, by promoting a reluctance among the judiciary to preside over expenditure of large sums of public money in heavily contested cases in which three or more parties, depending on the number of co-respondents, might all be legally aided, although the outcome might be plain almost from the start.11 Even in undefended cases, the system involved heavy expense for what seemed to be increasingly little public benefit.

The legal aid scheme was thus set up in response to what was regarded in the post-war period as a divorce crisis. Its main purpose was to deal with marriage breakdown, and this is the task it has so far performed. Yet neither the Law Society nor the Lord Chancellor’s Department wished to dwell on this aspect. Instead reference was made more broadly to the need to be able to prosecute a just and reasonable claim or defend a legal (p.537) right.12 As the War Office told the Department in 1942, ‘we do not want to give the impression that the morale of the whole army will suffer if there is no machinery for easy and cheap divorce’.13 Despite owing its existence largely to the need for legal help in divorce, civil legal aid soon came under pressure from the growing number of divorce petitioners, especially during the 1970s,14 as the population which was formerly restricted to the inferior remedies of the magistrates’ courts acquired access to the remedy they really required: judicial divorce. The importance of the magistrates’ jurisdiction accordingly declined. It is clear that family work has remained dominant within the legal aid budget to a remarkable degree. In 1995–6 family work accounted for a third of all legal aid expenditure, and formed the largest single category of work, even though legal aid was now specifically designed to cover only those living at or close to benefit levels, and not the 80 per cent of the population originally within its eligibility criteria, Family work for the Legal Aid Fund was not highly paid but there was so much of it that consideration of this part of the total legal aid budget began to have a disproportionate impact on legal policy making. The political need for the Lord Chancellor to control legal aid expenditure, and not to be seen as being manipulated by the profession as in 1948, remained a strong factor in the development of family law throughout the period under review.

The first serious step in reducing legal aid expenditure in family matters was the introduction, in a limited way in 1973, and then on a universal basis in 1977, of the ‘special procedure’ which removed the court hearing from the granting of undefended divorces, simultaneously removing the provision of legal aid from this essentially administrative process. But this failed to stem the rise in legal aid expenditure in family matters as court work shifted from granting divorce decrees to making orders, usually by consent, in ‘ancillary’ proceedings (finance, property, children).15 Various experiments on court-centred ‘mediation’ were developed in the 1980s, but in the 1990s the legal aid system itself came in for radical review.

In 1996 the Conservative Lord Chancellor, Lord Mackay, announced a thorough review of the legal aid scheme, the central part of which involved the provision of public funding through contracts between the Legal Aid Board and ‘providers in the private and voluntary sectors’.16 (p.538) The same policies were pursued by the New Labour Government which replaced the Legal Aid Board with the Legal Services Commission.17 For the first time, through contracting, the state will contribute to purchasing legal services from non-lawyers as well as lawyers. There is likely to be more diversification among the legal profession, with specialists, salaried lawyers, multi-disciplinary partnerships and so on, and also closer cooperation between lawyers and non-lawyers in providing legal services, However, there is also expected to be a contraction of the availability of publicly funded legal advisers, as such legal provision is confined to licensed contractors. It is also unclear, as the system begins in 2000, whether the provision of these services will appear attractive enough to the profession to maintain an acceptable level of provision.

Marriage Saving, Reconciliation, and Conciliation (Mediation)

Any family justice system would prefer to be unnecessary. The promotion of reconciliation has long played a primary part in family law policy discussion, and continues to do so. In 1947 Lord Merriman, then President of the Probate, Divorce and Admiralty Division, proposed to the Denning Committee a tribunal to deal with undefended divorces, and this was to be responsible to a Commission of Conciliation and Enquiry. Each tribunal would begin by considering the possibility of reconciliation. The proposal was rejected by the Committee on the grounds that it introduced the principle of reconciliation so late into the divorce process that it would diminish the chance of success, and that this would be exacerbated by the association of the concept of reconciliation with the authority of such an august tribunal. The report of the Denning Committee placed great emphasis on preserving the marriage tie and attempting reconciliation in every case where there was a prospect of success. It concluded that there should be a Marriage Welfare Service ‘to afford help and guidance in preparation for marriage and also in difficulties after marriage. It should be sponsored by the State but should not be a state institution. It should evolve gradually from the existing services and societies just as the probation system evolved from the Court Missionaries and the Child Guidance Service from the children’s clinics.’18 In the Finer Committee’s words, this part of the report ‘fell by the wayside’,19 but it did foreshadow the role of the court welfare officers, first appointed in (p.539) 1950, in investigating and reporting on the welfare of children in divorce proceedings.

Section 3 of the Divorce Reform Act 1969 (subsequently section 6 of the Matrimonial Causes Act 1973) empowered the court to adjourn proceedings for divorce for such periods as it thought fit to enable attempts to be made to effect reconciliation, and provided that rules should be made to require the solicitor to certify whether he had discussed the possibility of reconciliation with the petitioner and given him or her the names and addresses of persons qualified to help effect a reconciliation between the parties to a marriage who had become estranged. However, the provisions about adjournment became almost immediately redundant after the introduction of the ‘special procedure’.20 Any attempt, it seemed, to use the process as a means for saving marriages had been abandoned.

By the late 1970s the Marriage Guidance movement had moved away from concentration upon saving marriages, to smoothing the transition from one status to another. As the Home Office put it in 1979: ‘Methods of casework were developed designed to enable the client to understand more of himself and his problems, and, in understanding, help himself. Out of this grew “marriage counseling” rather than “marriage guidance”…the outcome may be a marriage ended, with less hurt, perhaps less insult to the emotional and spiritual relationship than otherwise there may have been.’21 So we begin to see the marriage savers moving away from reconciliation towards conciliation, partly as a result of the appreciation by the judiciary that by the time a matter reached court the chances of marriage saving were remote. However, late in the century, under the pressures of what Grossberg22 refers to as ‘reactions’ to the divorce revolution, attention reverted to the possibility of using the divorce process to save savable marriages. The ‘period of reflection and consideration’ proposed by the Family Law Act 1996 and the compulsory attendance by the initiator of the process at an information meeting were seen as mechanisms which might make the parties pause before going through with the divorce.23 The scheme had not been brought into effect by the end of the century, and its prospects of success as a marriage-saving venture are extremely speculative.

The Finer Committee is often identified as the source of key innovative ideas on family law in this period. But the beginnings of the move from reconciliation to conciliation predate the Committee. In 1972 the (p.540) President of the Family Division directed that courts should refer cases to probation officers for conciliation, an activity which was distinguished from either reconciliation or inquiry leading to an investigative report. According to Dingwall and Eekelaar24 this was the Family Division’s response to section 3 of the Divorce Reform Act of 1969 which permitted the courts to adjourn cases for attempts at reconciliation. But the direction widened the scope of that provision to allow adjournment where conciliation might assist the parties to resolve their dispute or any part of it by agreement. It is doubtful whether this direction had any immediate effect but it bridged the gap between the tradition of reconciliation and the new concept of conciliation. It was made all the easier by the disappearance of ‘collusion’ as a bar to granting divorces with the reform of 1971. Some argued that such a development would contribute to the welfare of the children, the couple, and the institution of marriage.25 This was later developed by the conciliation (now more commonly termed mediation) movement of the 1990s which sees its role as improving communication between the parties rather than always achieving a specific outcome.26

During the period when the marriage guidance services were ambivalent about extending their work to the unsavable marriage, the cause of mediation was taken forward primarily by the out-of-court or independent conciliation services first established in Bristol in 1975, rather than by the court welfare service. Financial support for this service in Bristol remained temporary and unpredictable, but the service has been regarded as being in the vanguard of mediation services in the United Kingdom. It was provided predominantly as a freely available social service rather than as a commercial, market-based activity as in the United States. The co-ordinator of the Bristol service, Lisa Parkinson, went on to occupy the key role of training officer for the National Family Conciliation Council. She stresses in her writing the value of the process to the parties in increasing their capacity for self-determination, and encouraging people to Take control of their own affairs and to work out their own solutions’. In addition mediation is now believed to offer benefits to children by mitigating the emotional impact of divorce and enabling divorcing parents to develop the necessary skills to remain in co-operative contact as co-parents of the children of the marriage. By 1986 the not-for-profit mediation services were dealing with 2–3,000 cases per year. This must be put alongside a totality of some 150,000 divorces a year during that period.

(p.541) However, in the closing decade of the century, the mediation movement became caught up in a different agenda. Concern over legal aid expenditure had continued to grow, and now governmental sources saw mediation as a means of reducing these costs. The Law Commission’s proposal in 199027 to replace the divorce scheme of the Divorce Reform Act 1969 with a single waiting period became, in the Government’s hands, an instrument for promoting mediation over lawyer-based negotiation.28 The early consultation paper of the Conservative administration placed mediation centre-stage,29 and the succeeding Labour Government maintained the same policy. Most significantly, all clients seeking public funding for legal help (save in exceptional situations, for example, where violence is present) will now need to meet a mediator in the first instance. If the mediator considers the case to be suitable for mediation, funding for the use of a lawyer is unlikely to be granted. This policy30 has been introduced in stages to allow monitoring of its efficacy. It will take a couple of years before the outcome will be known, but it is safe to say that the future of mediation as a major part of the process of dealing with family disputes in England and Wales turns on the extent to which it develops alongside the publicly funded legal services.

The Family Court Movement

The key role played by the Finer Committee in the development of family justice lies not only in the development of the interest in conciliation but also in the concern about the wisdom of maintaining a dual system of family law, divided between the summary jurisdiction of the magistrates and the High Court and county courts. In 1980, Mervyn Murch31 stressed the need not only for information but also for counselling for those involved in disputes related to their divorce. But for all disputed matters which cannot be settled by negotiation or conciliation he supported the concept of a family court, suggesting that the institution should be supported by a body to deal with preliminary hearings. This would be known as the family tribunal and would have four tasks; first, to sift evidence and evaluate interests, and take over all the administrative tasks (p.542) then undertaken by the county court registrars and the magistrates’ clerk’s office. Second, it would investigate those matters where there was insufficient documentary evidence to justify making the orders sought. The chairman would have powers to call parties in to discuss, for example, questions of satisfaction with arrangements concerning children. Third, the tribunal could grant orders where there was no dispute, or where the state’s interests were satisfied on the strength of the evidence before the tribunal. And fourth, the tribunal would promote the settlement of family disputes by a process of negotiation and conciliation. Parties and their representatives could be called together for pre-trial review, and to sit at the table with minimal formality to try to reach a settlement. Only when these avenues had been exhausted would the case be set down for a contested hearing. Using the experience of the social security tribunals, Murch suggested that the chairman of such a tribunal could sit with specialists in family finance and child welfare dedicated to reaching settlement. The procedure would leave the way open to return to trial and to have legal representation and could not be thought to impinge on the legal rights of the parties. But ‘it is clearly more satisfactory for the parties, their children and society as a whole if both parties emerge in an amicable frame of mind’.32

Murch argued for conciliators and welfare officers to form two branches of a single family court welfare service, as although both need a similar range of knowledge their tasks are different. He saw this system as gradually taking on responsibility for most juvenile matters, especially care and protection of children and matters relating to the Education Acts, and to deal with adoption. The emphasis is different from that of the Finer Committee, which was mainly concerned to overcome the inadvisability of having two jurisdictions dealing with similar matters in rather different ways.33 These arguments were supported by developments in other fields of social policy akin to family justice. The Finer proposals in the section of the report entitled ‘One remedy One court’ followed on from the ideas contained in the Seebohm Report on the organization of local authority social services, which advocated a generic social service.34

This movement towards a simplified, comprehensible, and efficient service, which was implemented, though not without criticism, in social work, was not followed through for family justice, for a number of reasons. 1 have referred to the cost of such a radical change, but there was also a structural issue, and that concerned the place of juvenile crime within the system. Although it was part of the Labour Government’s (p.543) policies in the 1960s to view delinquency in the context of family problems,35 the family court policy was not brought into being in England and Wales before the conservative reaction in the 1970s.36 However, while Murch’s ideal of a unified family court combining a judicial and welfare role was never realized, some of the more limited objectives of the Finer Committee were achieved. The Children Act 1989 restyled magistrates’ courts which dealt with family matters ‘Family Proceedings Courts’ and conferred on them a jurisdiction parallel to that of the higher courts in both child protection and private law matters concerning children. At the end of the century proposals to unify the Family Court Welfare Service (which deals primarily with children in private law cases) with Guardians ad litem (who are involved in public law cases concerning children) will bring a unified service closer. In another respect, a procedure which started in the divorce courts in London, but which will be applied throughout England and Wales during 2000, envisages close judicial management over private law family disputes which reach the courts. Part of the process will include an appointment before a judge to clarify issues and accelerate preparatory steps, followed by a Financial Dispute Resolution hearing (before a different judge) which it is hoped will assist parties in reaching agreement. These steps are intended to reduce delay and the cost of the legal process, whether publicly or privately funded, but the extent to which they will successfully do so is unproved.37

The Flight from Court: The Child Support Scheme

Professional intervention in family matters during the post-war period is characterized by the development of expertise in dealing with children deprived of a normal home life, and a growing acceptance of the notion of children’s best interests interspersed with discussion of children’s rights The responsibility of the state to provide access to a lawyer through legal aid is under threat, though at a period when there is growing family disruption and awareness of its adverse consequences. Hence the Government has turned to alternatives. We have discussed the emergence of mediation as a favoured option for publicly funded service provision in such cases. But the most dramatic manifestation of the flight from the courts has been the child support scheme.

(p.544) During the Thatcher administration the cost to the social security budget of serial partnerships resulting in one-parent families at a time of stringent cuts in public spending became an urgent problem, The child support schemes adopted first in Wisconsin and later in Australia whereby a child was deemed to have a right to a share in the income of the parents, rather than a claim through the parent with care, were attractive. The existing court-based mechanisms for recovering child support payments were deemed ineffective, especially where these payments were made directly to the state in return for state support of the family the debtor had left.38 Thus a formula was developed to ensure that the ‘absent parent’ should make a contribution which would as far as possible recompense the state for its support of that family: this was termed the ‘social security bill’. Furthermore, this was to be implemented through an administrative agency, with minimal discretion.39 The scheme reversed overnight the previous policy that when a man with limited income resources formed a second family, and his first family required state support, the state should be lenient in permitting him to retain resources necessary to support his second family. Now the first family was to be seen as having a prior claim on his resources, with very limited recognition afforded to his new dependants.40 This change in itself gave rise to great public concern, and this was exacerbated by the complexity of the scheme. In order to provide an acceptable substitute for court-based decisions, the Child Support Agency was required to replicate the level of detailed information collected by courts when dealing with individual claims. But the Agency was located within the social security system, which is accustomed to allocating welfare payments to applicants when criteria are met, and not to dealing with two-party disputes which require information from families whose circumstances are often changeable and difficult to verify. The hybrid nature of the organization led to delay in assessment, heavy bills for arrears, and public disquiet both among the men who were being asked to pay more and also the women on welfare, whose benefits were reduced pound for pound when support payments were made. There was little evidence of any benefit to the children.41 With limited exceptions, anyone claiming (p.545) state support for children where the other parent had left the home was obliged to activate the machinery. Courts lost most of their jurisdiction to order child maintenance, except when the order incorporated a prior written agreement about it between the parents.

The Conservative administration responded to criticisms by allowing departure from the formula in strictly defined circumstances, which only added to the scheme’s complexity,42 The Labour administration, however, instituted a major simplification of the formula. Liability would now be assessed to a straight percentage slice of net income: 15 per cent for one child, 20 per cent for two-children, and 25 per cent for three or more children.43 It was hoped that this simplicity would enable the Agency both to benefit more children and to increase the proportion of non-resident parents paying their full due amount, which was only 40 per cent. As before, any lone parent claiming social security benefit would be required to use the scheme, but on receiving child support would now receive a £10 allowance before benefit was reduced. Parents who wished to make their own arrangements through the courts would be able to do so, but the option of returning to the Agency remained.44 Whether these changes will improve what has been generally accepted as a disappointing service remains to be seen.

Conclusions

This chapter began with T. H. Marshall’s account of the importance of access to legal services in order to ensure access to justice for all citizens. But as the new century begins, access to justice appears to have been redefined by those who make legal policy as being no longer dependent on the services of lawyers and the courts. If we look to a justice system to provide resolution of disputes, in the context of divorce we see a strong emphasis on mediation as an alternative to the legal process. If we look to courts to provide enforcement of rightful claims, then again we see an alternative provided through clear formulation of rights which can then be implemented by an administrative body, such as the Child Support Agency. The common strategy is the avoidance of courts and the common aim is to distinguish between the needs of adults and children, by encouraging private agreement between adults who wish to alter their living arrangements, combined with public acknowledgment of the indisputable obligation of parents to children which can be ascertained and enforced without the need for lawyers and courts.

Notes:

(1) T. H. Marshall, ‘Citizenship and Social Class’, in Sociology at the Crossroads and Other Essays (Routledge, 1963).

(2) Conseil d’Etat, L’Aide juridique: pour un meilleur accès au droit et à la jústice, Section du Rapport et des Études, cited in A. A. Paterson and T. Goriely (eds), A Reader on Resourcing Civil justice (Oxford University Press, 1996) 13.

(3) Report of the Royal Commission on Divorce and Matrimonial Causes, Cd 6478 (1912), para 51.

(4) Report of the Committee on Legal Aid and Legal Advice in England and Wales, Cmd 664, 1945.

(5) T. Goriely, ‘Rushcliffe Fifty Years On: The Changing Role of Civil Legal Aid within, the Welfare State’, (1994) Journal of Law and Society 545.

(6) For a full discussion, see Gwynn Davis, Stephen Cretney, and Joan Collins, Simple Quarrels (Clarendon Press, Oxford, 1994) at 10.

(7) Second Interim Report of the Committee on Procedure in Matrimonial Causes, Cmd 6945, 1946.

(8) Finer Report, Report of the Committee on One Parent Families, Vol 1 Cmnd 5629 (1974). at 77.

(9) C. P. Harvey, ‘On the State of the Divorce Market’, (1953) 16 Modern Law Review 129.

(10) Blunt v Blunt [1953] AC 517.

(11) See eg Professor L. C. B. Gower’s evidence to the Royal Commission on Marriage and Divorce, Cmd 9678 (1956), First Day, 16–26.

(12) See Lord Chancellor’s Department, Legal Aid and Advice Bill 1948, a summary of the proposed new service, Cmd 7563 (1948).

(13) Letter from P. J. Grigg to Sir Claud Schuster dated 9 Feb 1942 (PRO file LCO2/2845), quoted by Goriely, n 5 above.

(14) Gibson, Ch 2 of this volume.

(15) For a full discussion, see John Eekelaar, Regulating Divorce (Clarendon Press, Oxford 1991) ch 3.

(16) Striking the balance: the future of legal aid in England and Wales, Cm 3305 (1996).

(17) Modernising Justice, Cm 4155 (1998).

(18) Final Report of the Committee on Procedure in Matrimonial Causes, Cmd 7024 (1947) para 28(iii).

(19) Finer Report, n 8 above, para 4.290.

(20) Sec above, at 537.

(21) Home Office Working Party, Marriage Matters (1979), paras 1.15–l6, For a full discussion, see Robert Dingwall and John Eekelaar (eds), Divorce, Mediation and the Legal Process (Clarendon Press, Oxford, 1988) ch 1.

(22) Ch 1 of this volume.

(23) See John Eekelaar, ‘Family Law: Keeping Us “On Message”’ (1999) 11 Child and family Law Quarterly 387.

(24) See n 21 above.

(25) A. H. Manchester and J. M. Whetton, ‘Marital Conciliation in England and Wales’ (1974) 23 International and Comparative Law Quarterly 339.

(26) Jane Lewis, The Role of Mediation in Family Disputes in Scotland (Scottish Office, 1999).

(27) Law Commission, Family Law: the Ground for Divorce, Law Com No 192 (1990).

(28) For a full discussion of these issues, see John Eekelaar, Mavis Maclean, and Sarah Beinart, Family Lawyers: The Divorce Work of Solicitors (Hart Publishing, 2000).

(29) Looking to the Future: Mediation and the Ground for Divorce: A Consultation Paper, Cm 2424 (1993); followed by the White Paper of the same title, Cm 2799 (1995).

(30) Enacted in the Family Law Act 1996, s 29.

(31) Mervyn Murch, Justice and Welfare in Divorce (Sweet & Maxwell, 1980).

(32) Murch, n 31 above, at 263.

(33) Finer Report, n 8 above, vol 1, at 189.

(34) See Masson, Ch 26 of this volume.

(35) See Home Office, The Child, the Family and the Young Offender, Cmnd 2742 (1965).

(36) Unlike in Scotland, where the children’s hearings system currently operated dates from that period: see Christine Hallett, ‘Ahead of the Game or Behind the Times? The Scottish Children’s Hearings System in International Context’, (2000) 14 International journal of Law, Policy & the Family 31.

(37) See Eekelaar, Maclean, and Beinart, n 28 above.

(38) See Children Come First: The Government’s proposals on the maintenance of children, Cm 1263 (London, HMSO, 1990).

(39) Child Support Act 1991.

(40) For detailed discussions, see M. Maclean and J. Eekelaar, ‘Child Support: The British Solution’ (1993) 7 Int Journal of Law & the Family 205; M. Maclean and A. Warman, ‘A Comparative Approach to Child Support Systems: Legal Rules and Social Policies’; and J. Eekelaar, ‘Child Support as Distributive and Commutative Justice: The United Kingdom Experience’, in J. Thomas Oldham (ed), Child Support: The Next Frontier (University of Michigan Press, Ann Arbor, 2000).

(41) For a detailed critique, see Gwynn Davis, Nick Wikely, and Richard Young, Child Support in Action (Hart Publishing, 1998).

(42) Child Support Act 1995.

(43) Department of Social Security, A new contract for welfare: Children’s Rights and Parents’ Responsibilities, Cm 4349 (July, 1999).

(44) Child Support, Pensions and Social Security Bill 2000.