FAMILY LAW IS DIFFERENT

• Date: 01 October 1995
• Author: Q.C. Nigel Fricker
• DOI: http://doi.org/10.1111/j.174-1617.1995.tb00385.x
• Published date: 01 October 1995

FAMILY

LAW

IS

DIFFERENT

Judge Nigel Fricker,

Q.C.

Family

law

and adjudication are conceptually direrent from most other areas

of

law. This

diflerence, and

the

sensitive needs of members

of

all

families in dispute, including children

and

people from darering ethnic cultures, demand particular awareness and

skills

from family

lawyers and judges. These special features of family law and disputes imply that mediation is

more benign than lawyer-controlled dispute resolution.

THE

ESSENTIAL

CONCEPTUAL DIlWERENCE

OF

FAMILY LAW

The experience of lawyers and litigants varies considerably according to

the area of law in which they are or become involved. Criminal law, the law

of torts or civil wrongs, and the law of contract and commercial dealings each

give rise to experience different from the others.

The practice of family law involves particular sensitivity to the welfare

needs of children, the trauma of separation and divorce and the consequent

emotional and psychological changes, and the diverse cultural expectations

and family structures of various ethnic groups. These and other practical

circumstances arising in the practice of family law make experience of it

different from other

areas

of legal practice but do not distinguish family law

as

essentially different in any conceptual way. There

is

an additional and

fundamental respect in which family law is distinct from most other areas of

legal practice.

Most litigation and adjudication

is

concerned with the determination of,

and giving effect to, vested legal rights arising from past events. In most

adjudication, the court

has

to

determine the legal rights and obligations that

have accrued

to

the litigants, and achieve a “verdict” on past events, before

moving on to the grant

of

appropriate legal remedies to give effect to vested

legal rights.

In trial of crime, torts, or contract, the process of reaching the verdict

requires the court

to

decide,

as

objectively

as

humanly possible, what has

Author’s

Note:

This

article

is

based onapaper deliveredat a conference, “JudgingandDecision

Making,

”

held by the Institute for the Study

of

the

Legal

Profession at fhe Universify of Sheffield

on

9

September

1994.

A

shorter version

of

this articlefirst appeared in

Family

Law,

June 1995,

FAMILY

AND CONCILIATION COURTS

REVIEW,

Vol.

33

No.

4,

October

1995

403414

Q

1995

Sage

Publications.

Inc.

pp.

306-309.

403