Family courts are ripping at the seams with applications, with children waiting too long for important decisions to be made about them. The family justice system is in need of modernisation, and it is time our culture and procedures changed. But how should we modernise and what can we expect from the changes proposed in Mr Justice Ryder's report on the modernisation of family justice? As a practitioner, how will you advise your clients in a public law case? Will you ever have a client in a private law case again? Will litigants be more confident in the system and what can we expect from our judges in this brave new world?
The Crime and Courts Bill is now before Parliament and provides for a new, single Family Court, to 'replace and simplify' existing arrangements. All judges will be 'judges of the family court,' and the launch of the Family Court will be phase one in the implementation of the Judicial Family Modernisation Programme put forward by Ryder J.
Between 2013 and 2014, judges will receive judicial training and prepare for phase two: the implementation of the Children and Families Bill. High Court judges will regularly sit in the Family Court, 'providing leadership to interpret legislation, rules and practice directions'.
As family lawyers, we need to prepare for the changes the Children and Families Bill likely to introduce. In public law cases, it is likely to deal with the Government's proposal to limit care cases to 26 weeks (save in judicially excepted circumstances). That, you may observe, is a significant reduction from the current 40 weeks. How many cases complete in 40 weeks at the moment? Are we currently wasting time, or does it simply take longer to garner the necessary information? A more focused scrutiny of the final care plan will be required '“ but don't we do that already, you may ask. Extended interim supervision and care orders without monthly renewals will be permitted, and few will argue that such a revision isn't entirely sensible after a first, interim hearing.
Rigorous approach
One key recommendations by Ryder J is that courts will be required to 'adopt a rigorous approach to case management based on knowledge of what works i.e. research on outcomes for children and materials identifying what is good social work practice and what the court needs to make the decision asked of it' (see paragraph 43 of Ryder J's final report). A framework of good practice will describe case management 'pathways' for both public and private law proceedings, and provide supporting materials to help practitioners deliver that which the court needs. The materials will be contained in a virtual Family Court Guide.
So, you may conclude, good social work practice will be the starting point for children currently drifting towards care. It's hard to argue against that. In fact, don't we expect it now? Good social work practice and reporting can '“ and does '“ avoid applications for independent social work assessments. If reports are thorough and based on detailed, historic events, they can also obviate the need for psychological evidence to be obtained. Good reports can only be provided, of course, in circumstances where adequate training ?and resources are available for the benefit of front line social workers. Although we will probably have to hold our breath for that one.
But whatever its quality, social work evidence cannot supplant the role of expert medical evidence in some cases. The question is what experts we can expect to instruct in the future in cases of alleged non-accidental injury.
Every child is genetically different, and where injury is sustained, physical health is considered in the context of genetics. Lawyers should strive to prevent 'delay' being used as a trump card to prevent arriving at an informed medical position. What we need to ask is whether there is an underlying condition or disease; whether we are beyond understood medical phenomena in any given case.
Use of experts
In these cases, practitioners will need to have details of experts in chosen fields at the ready. They will need to justify why an expert should be used, over and above the generic explanations that 'my client disputes what the current expert says'. For instance, you will need to be prepared to consider published and peer-reviewed research; it may form the basis for an application for further instruction. Expect judges to ask you '“ as they probably are now '“ whether your expert necessary, and to what issue the evidence goes. Is it relevant to the ultimate decision and is it proportionate in the context of the case?
A father limited to supervised contact will always consider that a report is proportionate and necessary if it might '“ just might '“ evidence why he should see his child in unfettered circumstances. Whether the cost is judged proportionate within the context of public law proceedings remains to be seen. At a time when public authorities are already restricted in the amount of time and money that they can spend on individual cases, whether there is need for further cautionary guidance surrounding the instruction of experts is dubious indeed
The timetable for the child is to be set at the beginning of every case. It will presume that non-exceptional cases can be completed in 26 weeks. That is a significant reduction from the existing time-frame. Will it mean a delay in local authorities issuing proceedings? Inadequate resources and paucity of paperwork in any given case may make delay tempting for cash-strapped local authorities and to the possible detriment of children and parents involved. Arguably even more so where there is an expectation of compliance. Sanctions for non-compliance may include costs to be paid by the parties. Does that help a system at breaking point?
Most private law parties will fall outside the scope of public funding after 1 April 2013. The task for the judiciary in those circumstances is to ensure that those who are entitled to family justice are provided with access to it, whether represented or not. That will be no mean feat.
The challenges for the judge are many. Interpretation facilities, questions surrounding capacity, safeguarding and expert advice issues must all be dealt?with, without the assistance of lawyers. ?We know that the number of applications in our family courts is rising. Is the length ?of hearings likely to reduce where legal advice is not provided to litigants? New materials by way of practice notes and explanatory guidance will be provided ?for self-representing litigants and ?McKenzie friends.
But as practitioners are aware, it isn't the legal principles in private law proceedings which are difficult for clients to cope with. Parents usually understand the proposition that judges make decisions in the best interests of children. Much more difficult is the emotional upset which can form the background to proceedings. Judges will need to be able to manage their courtrooms taking into account the raw emotion that human beings bring. And, of course, in the context of the judicial temperament that they bring.
Confidence in the system
What about public confidence in the system? Proposals are to be developed requiring case management decisions that involve adjournments and/or the use of experts to be explained in publicly available rulings. The aspiration is that over time the majority of judgments and reasons will be handed down in an anonymous or redacted form, offering sufficient protection to the individuals involved.
At the moment however, it is not clear who will be completing the redactions, especially in private law cases, or who will be removing the facts or comments that will identify the child, to the knowing reader. Yet another task bowled at the modern judge, presumably.
The National Family Justice Council has been retained as an independent advisory body to be chaired by the President of the Family Division. The Family Justice Council has been asked to contribute to the modernisation programme by providing multi-disciplinary advice on a number of issues. These include: more effective use of expert evidence in the family courts; best practice and quality standards for experts; pre-proceedings in private law; and self-representing litigants.
Experienced practitioners will have an informed view of what such advice may contain. As with the current public law protocol, it will no doubt be sensible and wise enough on paper. How the modern system works in practice, of course, may be a different matter.
In the end, it will depend largely on the resources provided to support it, and the quality and temperaments of the individuals operating within it.
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