CFLP’s Simon Bethel and Adam Moghadas attended the East Anglian Family Justice Review Conference in Cambridge on Thursday 19 April. Delegates came from all across the region to the conference organised by Fenners Chambers. They heard speakers including Mr Justice Ryder who is in charge of modernising family justice, plus local practitioners from the fields of social work, mediation, academia and the courts. The idea was to spread the word about the changes that are due to take place in the family justice system over the next couple of years.
Progress in reforming family justice has been slow and a long time coming. We are at a critical point now where the justice system is outdated, overloaded and fraught with delays that are clearly detrimental to the families and children it is tasked with serving and protecting. The government asked David Norgrove, an economist and former civil servant, to undertake a wholesale review of the system and make recommendations for reform. The government response followed, and accepted most of the recommendations made with one particularly controversial exception which we come to below. The judiciary’s response will be published on 31 July.
Mr Justice Ryder set out the timetable for the next fifteen months in the family justice system, which will culminate in the introduction of a new single Family Court in July 2013. Currently there are three tiers of court where family proceedings can be commenced, depending on their complexity: the family proceedings court, heard by magistrates, the county court in which district and circuit judges sit, and the Family Division of the High Court which takes the most difficult and high-profile cases. From July next year, all family cases will be started in the same place and it will be up to the court, rather than the applicant, to make the decision about which tribunal hears the case. This administrative system will be put in place by April 2013 with new legislation.
In cases where the dispute is between the parents or other relatives of children after family breakdown (what we call “private children law”), or is financial and arising from a family separation, divorce or civil partnership dissolution, clients will have to access the family justice system through a new internet and/or telephone ‘hub’ that will refer most cases to a mediator in the first instance. This means that mediators will be on the absolute frontline of the new private family justice arrangements, and there are proposals that they should effectively act as case managers for the system. It is fair to say that mediators are unsure whether they are best suited to take on these new responsibilities, and that there is a lack of sufficiently qualified and experienced mediators who can take up the baton, should they be amenable to doing so. CAFCASS – the Children and Family Court Advisory and Support Service – raised the concern that child protection issues might be missed if more cases are dealt with outside the court framework.
The Norgrove Review was primarily motivated by concerns that the system was failing vulnerable children because of excessive delays in the courts’ care system, and so discussions about the process for taking children into local authority care did take precedence on the day. The government’s aim is to arrange for all children to be placed within 26 weeks of the local authority making an application to the court, but the judges were clear that this was not a judicial timetable but a political edict. Judicial timetables will continue to be dictated by the judges after considering the paramouncy of the children’s best interests. That said, everyone shares the desire to speed up the process, and to that aim Mr Justice Ryder will be encouraging a less expansive approach to obtaining expert evidence in care proceedings where there might instead be a greater reliance on general research findings, and more inquisitorial involvement of the judge (or magistrates) in each case. Training will be given to ensure that those leading the system are confident in making the more proactive decisions they will need to make. As the judge said, “this is the end of the old way of doing things”.
Also at the forefront of practitioners’ thoughts at the moment are the changes being pushed through parliament in the Legal Aid and Sentencing and Punishment of Offenders Bill. As discussed previously, this will see the imminent removal of legal aid from the majority of family proceedings where children are not at risk of harm. Jo Miles of Cambridge University presented a compelling case against these changes, highlighting areas where the proposed changes are especially ill-thought out and could damage children’s prospects. The lack of a coherent system to address the impact of a likely massive increase in self-represented litigants without access to any legal guidance in the family courts is a worry for us all, and Jo Miles got the loudest applause of the day for her exposé.
The panel referred to the one exception to the government’s general agreement with David Norgrove: the government wants to see the introduction of some kind of presumption of shared parenting after family breakdown, despite the fact that this was examined in detail by the Report before being dismissed. David Norgrove and his advisers looked at the experiences of other jurisdictions that have introduced such a presumption and found that it has caused more problems in court because of misunderstandings about what shared parenting means; there is no research to support its introduction here. We will have to wait and see what happens on this – practitioners’ views are polarised, with many feeling that there should be a rebuttable presumption that both parents should remain involved in a child’s life, while others feel that any presumption takes away from the primacy of the child’s best interests. The fact that the government is removing the terms “residence” and “contact” and replacing them with a “child arrangements order” is causing concern in the same context.
The general upshot of the conference was that, on the whole, the law is not changing but the framework surrounding it may be a different shape in fifteen months’ time. Our reaction at CFLP is that the new single Family Court may well be an improvement in the long term, but the big issue for us is the removal of legal aid and the likely increase in self-represented parties in court, which in turn will lead to increased delays in private cases. In the wider system, there are concerns about the adequacy of judicial and magistrate training to handle the new-style inquisitorial system, and the lack of experienced mediators at triage stage. There was an overwhelming sense of the political pressure under which family law judges now operate, and it was clear that this is highly contentious. It feels like a volatile time for family law: there are clearly a few powder kegs ready to blow. The question is what – or who – will strike the match.