Ryder J warns of restrictions on cross-examination at family courts

Mr Justice Ryder has warned that restrictions on cross-examination by litigants in person may be needed if the family courts are to cope with the impact of next year’s legal aid cuts.

In a speech this morning, the judge in charge of the modernisation of family justice said the judiciary was likely to propose a new process for standard cases to help courts cope with a “volume of previously represented parents”.

Ryder J said judges would devise a “private law pathway” for litigants in person, including an “inquisitorial environment within which most decisions will be made”.

Instead of parties cross-examining eachother, judges would identify the issues they needed to explore in more depth and cross-examine the parties themselves.

“I do not forget and I know you will be concerned about the prospect of those who will fall outside of the scope of public funding for private law proceedings by 1 April 2013,” Ryder J told the public child care law conference in London.

“No one knows what the impact will be of the removal of public funding in terms of the volume of applications to the court nor the overall success rate of mediation.
“The judiciary are not responsible for answering the interesting and indeed challenging questions that now arise in respect of the pre-proceedings processes that will be put in place by government nor the mediation service itself, but we must take steps to ensure that those who are entitled to family justice are provided with access to it, whether represented or not.”

Mr Justice Ryder said it was clear that the courts would have to cope with “a volume of previously represented parents”.

He went on: “They will not have had the benefit of legal advice to identify solutions to their problems on the merits and demerits of their proposals. They will not have had identified to them the issues the court can address before arrival at the court door.

“They will arrive without professionally advised applications seeking permission to file evidence. Many will have no idea what a conventional court process entails and some will have no desire or ability to take it on board.

“We cannot expect our district bench colleagues who presently decide the majority of private law applications, and the magistrates who are likely to have allocated to them many more of these cases, to cope without assistance.”

Ryder J said the new private law pathway was likely to give litigants in person information setting out what the court “can and cannot do” and how things were done. There would be a procedure to help identify safeguarding issues and most decisions would be made in an inquisitorial environment.

For public law cases, Ryder J said experts were “misused and over-used” and there would be rule and practice direction changes relating to experts.

There would also be a “timetable track” which would presume that non-exceptional cases could be completed in 26 weeks.

“These will be known as pathways and they will describe how to achieve the objective in permissory language.”

For all cases, Mr Justice Ryder said the judges hoped to publish a statement of inquisitorial principle.

“The judge is in control and the judges decides what is to be determined, what is the evidence necessary for that decision to be made and how it is to be tested before the court.”

Ryder J said that over the last eight months he had been in an “extended conversation” with more than 4,000 interested parties around the country, and, by the end of next month, would have spoken to 5,000 people.

He said outline proposals for modernisation had been approved in principle by the Judicial Executive Board and the judiciary’s final proposals would be published at the end of July.