Adrienne Barnett

Family law without lawyers - A systems theory perspective

Abstract Prior to the loss of legal aid for many litigants in private law Children Act proceedings occasioned by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, family lawyers were observed to pressurise victims of domestic violence to agree to unsafe contact orders. Drawing on Luhmann’s theory of autopoietic social systems, this article suggests that, since April 2013, family lawyers have been repositioned as the champions of victims of domestic violence, and considers what this tells us about the way in which family law is observed to operate without lawyers in many cases. It suggests that the problems that litigants in person create for the orderly running of proceedings and the continued operations of the legal system have led to a perceived crisis for justice, but that family law is likely to survive without lawyers in many cases, although little change can be observed in the substantive law.

Introduction: contact and domestic abuse

ABSTRACT This article introduces the special issue of the Journal of Social Welfare and Family Law on contact disputes and allegations of domestic abuse. It first describes the aims and findings of the International Symposium on Contact Disputes and Allegations of Domestic Violence – Identifying Best Practices at which the papers in the special issue were originally presented. It then outlines the position in England and Wales regarding allegations of domestic abuse in child arrangements cases, highlighting the difference between the ‘law in the books’ and the ‘law in action’. Thirdly, it discusses the research evidence on another prominent international approach to domestic abuse allegations – legislative presumptions against custody or unsupervised visitation/contact for abusive parents. The experience of presumptions in the USA and New Zealand suggests that a similar gap between ‘law in the books’ and ‘law in action’ exists, together with potential problems of legislative drafting. Finally, the article outlines the contributions of the other papers in the special issue to our understanding of international approaches to ensuring safety for children and resident parents in family proceedings where allegations of domestic abuse are raised.

Getting a `Get' – the Limits of Law's Authority? N. v. N. (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 F.L.R. 745

This note examines the decision of the Family Division of the High Court in N. v. N. (Jurisdiction: Pre-Nuptial Agreement) in which, in the context of Jewish divorce proceedings, the Court found that it had no jurisdiction to order a husband, by specific performance of a marriage agreement, to go through the procedure to obtain a ‘get’ (a hand-written bill of divorcement) allowing his wife to remarry. First, discussion of the case is contextualised broadly within the debate on the (de)merits of employing legal means in order to redress social wrongs. Secondly, adopting a theoretical perspective upon the difficulties involved in using law to achieve social change, the note goes on to examine more specifically why women from minority cultures may choose to go to the law of the dominant culture in order to obtain relief.