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Councils face fixed costs orders for non-compliance in care proceedings

Local authorities that fail to comply with case management orders in care proceedings could be punished with fixed costs orders, Mr Justice Ryder has warned.

31 July 2012

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Launching the judiciary’s proposals for modernising family justice at the High Court this morning (31 July 2012), Ryder J said Cafcass will face the same sanction.

“If you have clear case management directions and a party does not comply or tell anyone about it, the hearing is wasted. We are suggesting, and it will need a statutory instrument, a fixed cost regime.”

Ryder J said those who failed to comply with orders “without excuses or notification” must pay for any costs thrown away. “This may result in a change of practice,” he said.

The judge explained that councils were the ones most at risk of having to pay fixed costs, because parents rarely caused delays and solicitors could already receive wasted costs orders.

This morning’s proposals included setting up a single Family Court with a network of local family court centres, ‘robust case management’ to ensure all but exceptional care cases took no longer than 26 weeks and, in private law cases, restrictions on cross-examination by litigants in person.

The size of the task in cutting the timetable for care proceedings was highlighted by the Lord Chief Justice, who said the average time this year was around 56 weeks, though in the last quarter this fell to 51 weeks.

In his opening remarks, Lord Judge said that in 2008, around 20,000 children were involved in some way in the family justice system. The figure was now 30,000.

He said courts had allocated an additional 8,000 days to family work in the past two years, but it was not enough.

“The huge pressure on the family justice system has led to unacceptably long delays,” Lord Judge said.

“For a child any delay represents a substantial proportion of his life. It is not acceptable. The increased work highlighted the need to overhaul and modernise the way family justice operates.”

Lord Judge said he believed “people should not worry too much” about the ability of family judges to provide effective case management.

“In the Crown Court judges are often assuming this role,” he said. “What we are discussing here is something that has been tried and tested in the criminal justice system.”

The Lord Chief Justice compared judges to football referees. In the old days, he said referees would wait for the players to come onto the pitch before blowing their whistles.

Now they go into changing rooms, explain the rules, and, when they are ready, lead the players onto the pitch and put the ball between their legs.

Ryder J said “assertive judges” were not the problem.

“Effective case management does not mean cutting corners but making decisions on what the issues are,” he said. “Judges err on the side of caution.”

The judges’ reform proposals called for less use of experts, who were described as “misused and overused”, and for limiting them to issues outside “the skill and expertise” of the court or to the “more complex” cases.

He said Cafcass would be asked to provide a “short analysis” every time an expert was instructed or there was a delay, as “usually the evidence already exists”.

Ryder J said experts were often called in because of a lack of confidence in the evidence already before the court.

Instructing experts simply as an excuse to repeat what you already know was time consuming and must stop. “It is generally done at the expense of the child,” he added.

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