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Having spent eighteen months examining the family justice system, the Family Justice Review, chaired by David Norgrove, reported their findings in November 2011. Stephen Cobb QC, Chairman of the Family Law Bar Association 2010-2011, studies the Government’s response.
The creation of a Unified Family Court, a new Family Justice Board, together with significant changes to family law legislation, supporting regulations, and practice/procedure in the family courts, particularly in the field of public law, are all signposted by the Government’s response to the final report, issued last November, of the Family Justice Review (FJR). These obvious changes to the family law landscape are expected to be eased along by what may and indeed will need to be a cultural change to the delivery of family justice.
The FJR had spent some 18 months undertaking extensive research into the family justice system. Over 600 individuals and organisations submitted evidence to the review. The Family Law Bar Association (FLBA) participated extensively, contributing both in writing and orally, and engaging with the FJR panel in ‘brainstorming’ workshops on some of the issues most affecting practitioners. The result, impressively chaired by non-lawyer, David Norgrove, is a reflective and well-informed paper.
While the report is not without its critics, there is much within it for the family practitioner to support: improvement in efficiencies in the family courts, greater levels of judicial continuity in the resolution of family cases, more robust case management, enhanced judicial training, increased specialism for family judges, and improved IT systems, to name some of the highlights. Once the FJR had ‘spoken’, the spotlight turned to Government.
The FJR’s proposal for enhanced and widespread use of mediation and other dispute resolution services in private law disputes was bound to go down well. The report and the Government and indeed all members of the family Bar have endorsed the value to parties of resolving their disputes out of court, but the Government’s enthusiastic support is unmistakeably driven by the perceived cost-saving benefits of keeping family disputes out of court.
The Government embraced the FJR’s proposal for radical structural change. It proposes (imminently) to create the Family Justice Board, bringing together key departments, delivery bodies, local authority representatives and the judiciary into a single forum to oversee the delivery of family justice. The Government has endorsed the proposal for a Unified Family Court. It is the Government’s intention that proceedings in the Family Court should be allocated to the appropriate level of judiciary based on factors including case type and complexity. In a welcome step to ensure greater cohesion in the delivery of court services, CAFCASS is to be moved to the Ministry of Justice. While the Government has rejected the FJR’s recommendation for the creation of a new post of Vice-President of the Family Division, it proposes that necessary leadership changes among the judiciary should be achieved within the existing legislative framework.
Public law: 6 month care cases
The reform of public law process, strongly recommended by the FJR, has been endorsed by the Government. This has significant implications for family practitioners. The agreed target is the reduction of delay. Given that the average care case in county courts now takes over 60 weeks (and many take much longer), there can be no real argument against that. The FJR has proposed a number of steps to reduce delay. Most significantly, it has recommended a radical change in the positioning of the courts in public law cases, in order to accelerate the court process, and contain it within a 26 week period. While proposing that courts continue to play a central role in public law proceedings, and while maintaining that the framework created by the Children Act 1989 is sound, it nonetheless seeks to re-focus the role of the court on the core issue of whether the child is to live with parents (other family or friends) or be removed to the care of the local authority.
Other issues, and all details of the care plan, will hereafter be the responsibility of the local authority. These proposals will be buttressed by legislation, by which the distinction between the role of the courts and local authorities in children’s care plans will become clearer. There will be primary legislation to provide a power to set a time limit on care proceedings which will be specified in secondary legislation. It is felt that adding an expected time limit into legislation would send a clear and unambiguous signal to all parts of the system that extensive delays are unacceptable. Previous attempts in this regard, it is said, have failed. These are laudable, but highly ambitious objectives; the field of family law practice in public law will change radically.
Further reform in the field of public law proposed by the FJR – namely the removal of the requirement to renew ICOs every 4 weeks, and the removal of the requirement for adoption panels to consider the suitability for adoption of a child [a ‘best interests’ decision] whose case is before the courts – have been endorsed by Government. There is good sense in both these initiatives.
Despite the recommendation of the Report and of the thoughtful Plowden Report of 2009, both of which said that they should be abolished, the Government proposes to retain the regime by which fees are paid by Local Authorities on making public law applications. This is a disappointing response of the Government, nakedly driven by budgetary considerations.
Private law: shared parenting
In private law, the Government has accepted the recommendations of the FJR panel to strengthen the importance of a good public understanding of parental responsibility. Significantly, it proposes to do away with ‘residence’ and ‘contact’ orders – mainstays of the current private law menu. The FJR and the Government share a common intention to create a new ‘child arrangements order’ to move debate away from the currently used terms which have themselves become a source of contention between parents. The terminology “contact” and “residence” has become unhelpfully associated with the idea of losing and winning; the ‘shared residence’ debate has, in the author’s opinion, generated rather than reduced, contention and dispute. The Government hopes that in this way greater focus will be brought to the practical issues of the day-to-day care of the child.
A provisional recommendation in the Interim Report of the FJR (published in March 2011), which was greeted by the media and various lobbying groups with considerable interest and enthusiasm, was the recommendation to insert a statement into legislation to reinforce “the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm”. Many saw this as a significant endorsement for the shared parenting lobby.
Unsurprisingly, perhaps, it was an area on which multiple responses flooded into the FJR secretariat, with views expressed strongly on both sides. With more thought given to the issue, in its final report, the FJR rowed back from its earlier recommendation, to the loud protest of the media and numerous lobbying groups. The position adopted by the FJR in its final report (there should not in fact be a statement of ‘meaningful relationship’ in legislation) was a position reached “clearly” and confidently. Having considered further the views of the consultees, and having received further evidence from the experiences of jurisdictions around the world, the panel concluded that the law cannot state a presumption of any kind without incurring unacceptable risk of damage to children; the panel concluded that the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. “Progress depends on a general social expectation of the full involvement of both parents in the lives of their children before separation, not on changes in the law”. In particular, the FJR was struck by evidence received from Australia, where a similar provision for a ‘meaningful relationship’ was made in its 2006 family law reforms. The evidence from Australia showed increased litigation, adding that the change had contributed to damage to children because the term ‘meaningful’ has come to be measured in terms of the quantity of time spent with each parent, rather than the quality of the relationship for the child.
The Government’s view
The Government does not agree. It rejects the FJR’s final position on the insertion of the ‘meaningful relationship’ provision into statute and proposes to carry forward amendments to the primary legislation. The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The Government has said that it is “mindful of the lessons” to be learned from the Australian experience of legislating in this area, and proposes to frame legislation carefully to avoid the “pitfalls of the Australian experience” – in particular to remove the confusion that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.
A working group of Ministers has been established to develop proposals for legislative change, which will be brought forward for wide debate and consultation later this year. The Government proposes that any changes will be complementary to, not in conflict with, the principle in the Children Act 1989 that the welfare needs of the child are the paramount consideration in any decisions made by the court; “this remains the ‘gold standard.’” It may well be that the ‘devil’ will be in the ‘detail’ of the drafting; the FLBA has already had discussions with MoJ representatives about this and is preparing to engage with the debate.
Finally, in the private law sphere it is worth noting that parenting agreements – in which parents set out arrangements for the care of their children post separation - are likely to become routine. Further dialogue between Government and the judiciary (and we hope practitioner groups) will consider how a signed Parenting Agreement could have evidential weight in any subsequent parental dispute.
Legal Aid
The Lord Chancellor and the Minister of State for Education, in their Joint Ministerial Foreword to the Government response, state that “the reform of family justice and child protection is a critical priority for Government”. It is nonetheless a source of considerable concern that the legal aid reform (contained in the Legal Aid Sentencing and Punishment of Offenders Bill currently before Parliament) is likely to operate to undermine many of the laudable initiatives being embraced by the FJR.
It is indeed surprising to read (again, in the joint Ministerial foreword to the Government’s response) that the legal aid reforms are said to “go in the same direction as, and support the aims of, our proposed changes to family justice”. There is no doubt that the legal aid reforms are going to have a profound effect on individual’s access to the courts, and on the day-to-day functioning of the family courts; court lists will grow longer (litigants in person not receiving advice about settlement), cases will take longer (ask any Judge), case management will become less efficient, family court administration will suffer. Specialist Judicial training and Judicial continuity are highly desirable in a specialist and dynamic field of law/practice; but the judges face the most overwhelming task of all in absorbing the impact of the changes which are being foisted upon us all. With the influx of self-represented litigants, each Judge’s willingness to carry the considerable burden of the FJR reforms will be put under increased strain.
The laudable reform programme proposed by the FJR runs the risk of being de-railed by the legal aid proposals – likely to become law – through the wholesale removal of private law from the scope of legal aid, and the proposed reduction of counter services for the hapless self-represented litigants who are left to fend for themselves.
Conclusion
The programme of change has been laid out by Government. By April 2012, it proposes to have established the Family Justice Board, and to have clarified the legislative changes which are required. By April 2013, a review of progress will be undertaken. Work has begun to modify practice and procedure since the interim report of the FJR was published; HMCTS and the judiciary have created a Family Business Authority which focuses on delivering reform to improve family court performance, while the President of the Family Division has appointed Mr Justice Ryder to the role of Judge in Charge of Modernisation. The Government has already committed to set a 6 month limit on the duration of public law cases, announced a two-third increase in funding for mediation in private law cases, and is publishing the data which will help drive system improvement. It is said to be determined, at the earliest opportunity, to pursue the range of changes to legislation so that the right frameworks are in place to drive improvement. The workload of the family courts, and the practitioners, is set to change radically in the coming years.
Stephen Cobb QC 1 Garden Court
The FJR had spent some 18 months undertaking extensive research into the family justice system. Over 600 individuals and organisations submitted evidence to the review. The Family Law Bar Association (FLBA) participated extensively, contributing both in writing and orally, and engaging with the FJR panel in ‘brainstorming’ workshops on some of the issues most affecting practitioners. The result, impressively chaired by non-lawyer, David Norgrove, is a reflective and well-informed paper.
While the report is not without its critics, there is much within it for the family practitioner to support: improvement in efficiencies in the family courts, greater levels of judicial continuity in the resolution of family cases, more robust case management, enhanced judicial training, increased specialism for family judges, and improved IT systems, to name some of the highlights. Once the FJR had ‘spoken’, the spotlight turned to Government.
The FJR’s proposal for enhanced and widespread use of mediation and other dispute resolution services in private law disputes was bound to go down well. The report and the Government and indeed all members of the family Bar have endorsed the value to parties of resolving their disputes out of court, but the Government’s enthusiastic support is unmistakeably driven by the perceived cost-saving benefits of keeping family disputes out of court.
The Government embraced the FJR’s proposal for radical structural change. It proposes (imminently) to create the Family Justice Board, bringing together key departments, delivery bodies, local authority representatives and the judiciary into a single forum to oversee the delivery of family justice. The Government has endorsed the proposal for a Unified Family Court. It is the Government’s intention that proceedings in the Family Court should be allocated to the appropriate level of judiciary based on factors including case type and complexity. In a welcome step to ensure greater cohesion in the delivery of court services, CAFCASS is to be moved to the Ministry of Justice. While the Government has rejected the FJR’s recommendation for the creation of a new post of Vice-President of the Family Division, it proposes that necessary leadership changes among the judiciary should be achieved within the existing legislative framework.
Public law: 6 month care cases
The reform of public law process, strongly recommended by the FJR, has been endorsed by the Government. This has significant implications for family practitioners. The agreed target is the reduction of delay. Given that the average care case in county courts now takes over 60 weeks (and many take much longer), there can be no real argument against that. The FJR has proposed a number of steps to reduce delay. Most significantly, it has recommended a radical change in the positioning of the courts in public law cases, in order to accelerate the court process, and contain it within a 26 week period. While proposing that courts continue to play a central role in public law proceedings, and while maintaining that the framework created by the Children Act 1989 is sound, it nonetheless seeks to re-focus the role of the court on the core issue of whether the child is to live with parents (other family or friends) or be removed to the care of the local authority.
Other issues, and all details of the care plan, will hereafter be the responsibility of the local authority. These proposals will be buttressed by legislation, by which the distinction between the role of the courts and local authorities in children’s care plans will become clearer. There will be primary legislation to provide a power to set a time limit on care proceedings which will be specified in secondary legislation. It is felt that adding an expected time limit into legislation would send a clear and unambiguous signal to all parts of the system that extensive delays are unacceptable. Previous attempts in this regard, it is said, have failed. These are laudable, but highly ambitious objectives; the field of family law practice in public law will change radically.
Further reform in the field of public law proposed by the FJR – namely the removal of the requirement to renew ICOs every 4 weeks, and the removal of the requirement for adoption panels to consider the suitability for adoption of a child [a ‘best interests’ decision] whose case is before the courts – have been endorsed by Government. There is good sense in both these initiatives.
Despite the recommendation of the Report and of the thoughtful Plowden Report of 2009, both of which said that they should be abolished, the Government proposes to retain the regime by which fees are paid by Local Authorities on making public law applications. This is a disappointing response of the Government, nakedly driven by budgetary considerations.
Private law: shared parenting
In private law, the Government has accepted the recommendations of the FJR panel to strengthen the importance of a good public understanding of parental responsibility. Significantly, it proposes to do away with ‘residence’ and ‘contact’ orders – mainstays of the current private law menu. The FJR and the Government share a common intention to create a new ‘child arrangements order’ to move debate away from the currently used terms which have themselves become a source of contention between parents. The terminology “contact” and “residence” has become unhelpfully associated with the idea of losing and winning; the ‘shared residence’ debate has, in the author’s opinion, generated rather than reduced, contention and dispute. The Government hopes that in this way greater focus will be brought to the practical issues of the day-to-day care of the child.
A provisional recommendation in the Interim Report of the FJR (published in March 2011), which was greeted by the media and various lobbying groups with considerable interest and enthusiasm, was the recommendation to insert a statement into legislation to reinforce “the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm”. Many saw this as a significant endorsement for the shared parenting lobby.
Unsurprisingly, perhaps, it was an area on which multiple responses flooded into the FJR secretariat, with views expressed strongly on both sides. With more thought given to the issue, in its final report, the FJR rowed back from its earlier recommendation, to the loud protest of the media and numerous lobbying groups. The position adopted by the FJR in its final report (there should not in fact be a statement of ‘meaningful relationship’ in legislation) was a position reached “clearly” and confidently. Having considered further the views of the consultees, and having received further evidence from the experiences of jurisdictions around the world, the panel concluded that the law cannot state a presumption of any kind without incurring unacceptable risk of damage to children; the panel concluded that the core principle of the paramountcy of the welfare of the child is sufficient and that to insert any additional statements brings with it unnecessary risk for little gain. “Progress depends on a general social expectation of the full involvement of both parents in the lives of their children before separation, not on changes in the law”. In particular, the FJR was struck by evidence received from Australia, where a similar provision for a ‘meaningful relationship’ was made in its 2006 family law reforms. The evidence from Australia showed increased litigation, adding that the change had contributed to damage to children because the term ‘meaningful’ has come to be measured in terms of the quantity of time spent with each parent, rather than the quality of the relationship for the child.
The Government’s view
The Government does not agree. It rejects the FJR’s final position on the insertion of the ‘meaningful relationship’ provision into statute and proposes to carry forward amendments to the primary legislation. The Government believes that there should be a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The Government has said that it is “mindful of the lessons” to be learned from the Australian experience of legislating in this area, and proposes to frame legislation carefully to avoid the “pitfalls of the Australian experience” – in particular to remove the confusion that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.
A working group of Ministers has been established to develop proposals for legislative change, which will be brought forward for wide debate and consultation later this year. The Government proposes that any changes will be complementary to, not in conflict with, the principle in the Children Act 1989 that the welfare needs of the child are the paramount consideration in any decisions made by the court; “this remains the ‘gold standard.’” It may well be that the ‘devil’ will be in the ‘detail’ of the drafting; the FLBA has already had discussions with MoJ representatives about this and is preparing to engage with the debate.
Finally, in the private law sphere it is worth noting that parenting agreements – in which parents set out arrangements for the care of their children post separation - are likely to become routine. Further dialogue between Government and the judiciary (and we hope practitioner groups) will consider how a signed Parenting Agreement could have evidential weight in any subsequent parental dispute.
Legal Aid
The Lord Chancellor and the Minister of State for Education, in their Joint Ministerial Foreword to the Government response, state that “the reform of family justice and child protection is a critical priority for Government”. It is nonetheless a source of considerable concern that the legal aid reform (contained in the Legal Aid Sentencing and Punishment of Offenders Bill currently before Parliament) is likely to operate to undermine many of the laudable initiatives being embraced by the FJR.
It is indeed surprising to read (again, in the joint Ministerial foreword to the Government’s response) that the legal aid reforms are said to “go in the same direction as, and support the aims of, our proposed changes to family justice”. There is no doubt that the legal aid reforms are going to have a profound effect on individual’s access to the courts, and on the day-to-day functioning of the family courts; court lists will grow longer (litigants in person not receiving advice about settlement), cases will take longer (ask any Judge), case management will become less efficient, family court administration will suffer. Specialist Judicial training and Judicial continuity are highly desirable in a specialist and dynamic field of law/practice; but the judges face the most overwhelming task of all in absorbing the impact of the changes which are being foisted upon us all. With the influx of self-represented litigants, each Judge’s willingness to carry the considerable burden of the FJR reforms will be put under increased strain.
The laudable reform programme proposed by the FJR runs the risk of being de-railed by the legal aid proposals – likely to become law – through the wholesale removal of private law from the scope of legal aid, and the proposed reduction of counter services for the hapless self-represented litigants who are left to fend for themselves.
Conclusion
The programme of change has been laid out by Government. By April 2012, it proposes to have established the Family Justice Board, and to have clarified the legislative changes which are required. By April 2013, a review of progress will be undertaken. Work has begun to modify practice and procedure since the interim report of the FJR was published; HMCTS and the judiciary have created a Family Business Authority which focuses on delivering reform to improve family court performance, while the President of the Family Division has appointed Mr Justice Ryder to the role of Judge in Charge of Modernisation. The Government has already committed to set a 6 month limit on the duration of public law cases, announced a two-third increase in funding for mediation in private law cases, and is publishing the data which will help drive system improvement. It is said to be determined, at the earliest opportunity, to pursue the range of changes to legislation so that the right frameworks are in place to drive improvement. The workload of the family courts, and the practitioners, is set to change radically in the coming years.
Stephen Cobb QC 1 Garden Court
Having spent eighteen months examining the family justice system, the Family Justice Review, chaired by David Norgrove, reported their findings in November 2011. Stephen Cobb QC, Chairman of the Family Law Bar Association 2010-2011, studies the Government’s response.
The creation of a Unified Family Court, a new Family Justice Board, together with significant changes to family law legislation, supporting regulations, and practice/procedure in the family courts, particularly in the field of public law, are all signposted by the Government’s response to the final report, issued last November, of the Family Justice Review (FJR). These obvious changes to the family law landscape are expected to be eased along by what may and indeed will need to be a cultural change to the delivery of family justice.
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