Reforming the family justice system: latest developments

In his sixth View from the President’s Chambers, Sir James Munby, President of the Family Division has set out an update on the progress of the plethora of reforms planned for the family justice system. The volume of information on change being directed at family practitioners is little short of overwhelming at the moment, but there are some interesting plans set out in the latest ‘View’ plus some clarifications and a little insight into working conditions at court…

Single family court

The President is working with HM Courts and Tribunals Service on issues relating to the single family court that will come into existence next year, including the:

  • provision of proper recording equipment in the (equivalent) of the family proceedings courts
  • case management system
  • naming of the designated family centres and hearing centres
  • headings for family court orders
  • numbering system to be used in future for family cases (which will be largely as at present)
  • design of the new family court seal

There is also work being undertaken by the Family Procedure Rules Committee. They are considering the:

  • functions and powers of justices clerks
  • powers of a single magistrate
  • criteria for allocating cases within the family court
  • precise scope of the High Court’s reserved jurisdiction; and
  • routes for appeals within and from the family court.

One can only hope (in a family justice system cut to the bone) that the focus will be on efficiencies and a relatively smooth transition. If the release of the Family Procedure Rules 2010 (and accompanying practice directions) is anything to go by, then hold on to your hats and prepare to be blasted with legislation, practice directions and regulations at the very last minute…

Revised Public Law Outline (PLO) pilot scheme

The President has said that by the first week of October 2013 all courts will have implemented the revised PLO. I attended one of the number of events at which the President discussed the pilot scheme, it was clear that there was great concern amongst practitioners and the President was firm that decisions had been made and the time for discussion was over. He says that early reports from those courts which have already implemented it are reassuring and indeed I have heard that in some areas the pilot scheme is working well, with significant reductions in timescales, but largely outside of major cities and I wonder how well those other areas are coping.

The President says that his objectives are that by the end of December this year:

  • there should be (save for a small handful of really exceptional cases) no current care case that was commenced in 2012 or earlier; and
  • the overwhelming bulk of care cases commenced since 1 July this year should be concluding within a maximum of 26 weeks

Triborough Care Proceedings Pilot

Interestingly the President also refers to the report published in July 2013 by the Centre for Research on Children & Families at the University of East Anglia: ‘Evaluation of the Triborough Care Proceedings Pilot’. The care proceedings pilot project was a joint initiative of three London borough: Hammersmith and Fulham, Kensington and Chelsea, and Westminster, working together with the judiciary, the court services, Cafcass and other key stakeholders, with the aim of reducing unnecessary delay for children undergoing care proceedings.

During the pilot year there were 90 cases, with commencement dates between 1 April 2012 and 31 March 2013. The report looked in detail at the 65 cases from the first nine months, which would be expected to have finished by the end of June 2013 if they had completed within the 26 week target. The principal aims of the evaluation of the pilot were to ascertain whether the following had been achieved:

  • a reduction in delay in care proceedings and the target duration of 26  weeks
  • judicial continuity and early involvement of children’s guardians
  • a reduction in the number of hearings and fewer and more timely assessments completed

The Triborough Care Proceedings Pilot report also considered:

  • how these changes had impacted on the quality of decision making
  • how quicker timescales had affected the children and parents involved
  • whether the benefits of the pilot can be sustained; and
  • what factors would promote sustainability

The report’s findings showed significant decreases in the duration of care proceedings within the pilot although, as highlighted by the President, some case-by-case flexibility about the length of proceedings is surely necessary in the interests of children’s welfare and justice. But he says that the pilot demonstrates that some flexibility can co-exist with meaningful efforts to reduce unnecessary court delay. Some points the President highlights from the report include:

  • that there was no evidence that the reduction in the length of care proceedings was achieved at the expense of more delay in the pre-court period
  • while many stakeholders expressed concerns about the potential for justice to be compromised by a rigid 26 week target, no one suggested that this had actually occurred
  • the case manager role was vital to the success of the pilot, and will continue to be vital in the future
  • commitment and leadership in all agencies (local authorities, Cafcass and the courts), and robust court management by judges and magistrates, were vital to the success of the pilot and will continue to be vital in the future
  • dedicated court time, and the availability of guardians at the initial hearing, were important to the success of the pilot - the reduction achieved could not be sustained if court timetabling problems or non-availability of guardians were to hold things up and this may prove a problem in areas outside the Triborough, or in the Triborough itself in the future if numbers of proceedings were to rise
  • working in the new way does not necessarily take more time, but it requires more energy therefore active leadership and monitoring of workloads and outcomes continue to be essential requirements

Private children

Mr Justice Cobb has agreed to chair a Private Law Working Group established by the President. Its membership includes judges and practitioners. Its terms of reference are:

  • to make recommendations to the President in relation to the resolution of private children law disputes in the most optimal and efficient way (building upon the President’s revised Private Law Programme (2010) and the single family court plans); and
  • preparing such documents as may facilitate those recommendations.

The Working Group had its first meeting on 2 September 2013, when it drew up an action plan, and intends to send recommendations to the President on 8 November 2013.

Transparency

In the President’s fourth ‘View’ he set out plans for improving transparency in the family justice system and asked for views on the draft guidance issued in July 2013. In this update the President stated that he:

  • is considering a number of responses that have already arrived but there is still time for views to be expressed
  • proposes to adopt an incremental approach - the first step is the issue of guidance on the publication of judgments, which should take place before the end of this year

The next step will be the issue of guidance on the disclosure of documents to the media. This also will first be issued in draft, for comment and discussion before it is finalised.

The President has requested views on two important matters:

  • what classes of documents should, or should not, be made available to the media; and
  • what safeguards and restrictions should be put in place to prevent inappropriate use of documents that are disclosed

Views can be sent to the President’s legal secretary, Penelope Langdon -penelope.langdon@judiciary.gsi.gov.uk.

Family orders

The President referred in his fourth ‘View’ to the work being undertaken by a team led by Mr Justice Mostyn to provide a comprehensive set of family orders, the use of which will in due course become mandatory in the family court and the Family Division. They will be published in draft form later this autumn for comment and discussion before they are finalised and introduced in time for the new family court in April 2014.

The President has clarified that the ‘house rules’ ie the style of punctuation and grammar of the orders, are not rules that courts or practitioners will have to follow – the obligation will simply be to use the prescribed forms of order.

Bundles

The President will be issuing a draft revised practice direction on bundles for comment and discussion later this autumn. His intention is that it will apply in principle to all hearings (whatever the level of judge) in the family court and in the Family Division. He plans to make amendments to the existing practice direction on bundles so as to ensure that in the overwhelming majority of cases the bundle will contain, at most, no more than 350 pages in a single lever arch file.

The key principles set out by the President are:

  • the bundle should contain only those documents that the court needs to read or that will actually be referred to during the hearing; and
  • the details of what must be included in the bundle set out in the existing practice direction needs to be balanced with more explicit reference to what is not to be included

The President has asked for views on:

  • whether there are any types of case or types of hearing that should be excluded from the ambit of the proposed bundles practice direction eg certain types of private law case or cases in which all parties are appearing in person); and
  • what classes of documents should be excluded from the bundle unless the case management judge directs otherwise

Views should be sent to the President’s legal secretary, Penelope Langdon.

Court buildings

In his travels to family courts around the country, The President says he has unhappily seen too many where the facilities are: 'inadequate and, in some cases, little short of scandalous.’ He adds: ‘We ask a lot of our people; surely the least we can do is to give them decent conditions in which to work. And what kind of impression do such buildings convey to litigants?’

This may not come as news to many in who work the family justice system…

Geraldine Morris is a solicitor and head of  the LexisPSL Family team

Twitter: @GeraldineMorris

 

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