Evidence submitted by Rt Hon Dame Elizabeth
Butler-Sloss DBE, President, High Court, Family Division
THE ADMINISTRATION
OF FAMILY
JUSTICE
The present system is open to criticism, much
of it well-founded. It is, however, difficult to focus on the
problems that have arisen in the private law sphere without taking
in to account the administration of the entire family justice
system.
PUBLIC LAW
In the field of public law, where children may
be removed from their parents in care proceedings, the process
requires a court hearing and a care order. The main justified
criticism is in relation to delays in completing the necessary
decision making process. The delays are caused by many factors,
notably social work reports, appointment and reports of CAFCASS
guardians, medical expert assessments and reports, and a shortage
of judges to hear the more complex cases within a reasonable period.
All these problems, among others, are being tackled, although
not all successfully. A Public Law Protocol is now in place (since
November 2003) across England and Wales, which embodies close
and firm case management by the family proceedings courts, by
circuit and district judges in the county court in the more difficult
cases, and by High Court judges in a minority of cases of the
greatest complexity or sensitivity heard in London and in different
parts of the country. The Protocol requires, as far as possible,
continuity of the judge in giving directions and in hearing the
care applications. The effectiveness of the Protocol is being
closely monitored by a Ministerial Group chaired by Baroness Ashton
of which I am a member.
PRIVATE LAW
In an ideal world disputes by parents about
their children ought not to be resolved in a court setting. The
majority of parents, about 90%, resolve their disputes over their
children without coming near to court. Some come to court and
settle through alternative dispute resolution, in court conciliation,
or accept the decision of the judge or magistrates. It is the
minority of the total number of cases which cause the difficulties
and create the tensions. Many of those generate a plethora of
long reports and lengthy judgments and keep returning to court.
It has for many years been the practice of judges
at all levels to encourage settlement at every suitable point
in a case and to discourage the adversarial process so far as
possible. The process is largely inquisitorial although it is
made adversarial by the parties and their lawyers. Courts have
the right to require evidence to be called or to refuse to hear
irrelevant evidence which may have the effect of exacerbating
the already fraught situation between the parents.
It is important to remember that certain groups
of cases may not easily be susceptible to or indeed appropriate
for mediation or in court conciliation. Issues of domestic violence
towards the other parent, physical injury or sexual abuse of a
child require resolution, unless admitted. Separate issues arise
if such allegations are proved and the protection of the child
and, in domestic violence cases, of the parent who was the victim,
requires careful consideration.
There are good features in the way in which
private law cases are dealt with but there are a number of obvious
problems. These problems have been with us to some degree for
some years. They have been exacerbated by a number of factors,
including lack of CAFCASS court reporters, lack of resources for
the problem families to obtain mediation, counselling, anger management
courses, mental health or similar help and the lack of a general
follow up of cases to try to avoid a return to court. An additional
factor has been the frustrations and disappointment of unsuccessful
parents coming into the public domain with the emergence of a
number of highly publicised organisations.
Some of the main problems as I see them are:
1. Competing pressures with public law work
The pressure of public law work and the importance
of getting these cases listed for hearing have an inevitable impact
on the hearing of the more difficult private law cases. The need
for circuit judges to hear a raft of more difficult care cases
and for High Court judges to hear the most complex cases referred
up to them results in concentration of the time of High Court
and circuit judges on care work. This has a knock on effect upon
the availability of judges at both levels to hear the more difficult
private law family disputes within the family. 20% of private
law cases are heard in the family proceedings courts. This leaves
80% to be heard in the county court with a few intractable disputes
heard by High Court judges or deputy High Court judges. A large
proportion of child family disputes are now heard by district
judges.
2. Delay
Delay at all levels, including the Family Proceedings
Courts ("FPC"), contribute to the overall difficulties
which arise in private law cases. There are also delays in hearing
financial disputes (ancillary relief applications) in the county
courts and other private law applications, since these cases are
all heard by the same pool of judges. One cause of the delay is
most simply a lack of enough judges (and in some areas courts)
available to hear the cases.
3. Judicial continuity
Ideally the same judge should hear the case
from beginning to end. However, in some places there is a significant
shortage of courtrooms and the family work has to be balanced
against the demands of criminal trials. The increase in the number
of private law cases heard by district judges should make it easier
for arrangements to be put in place for the judge to keep the
case and provide continuity. However, it has been and remains
difficult for circuit judges who try public law cases to be able
to manage continuity in respect of private law cases (but see
the Private Law Framework below). Lack of enough judges will inevitably
affect judicial continuity as well.
4. Flexibility
There is a lack of flexibility in the movement
of cases between the county court, particularly the district judges,
and the FPC with the adverse effect on the speed with which cases
can be disposed of. One strong impediment to the easy movement
of family work is the different method of payment to the Bar and
to solicitors by present Legal Services Commission policy and
the reluctance of the LSC to permit a fee for a barrister in the
FPC. I should like to see the easy movement of cases across courts
under the same roof, such as Birmingham, or within walking distance,
so as to use the available judges or magistrates and the courts
to the best advantage.
5. Information technology
The IT is not compatible between the county
court and the FPC, a problem which will become even more obvious
when more courts are placed under the same roof in new buildings
such as Liverpool next year and Manchester in 2006. This increases
the problems of joint listing and identifying judge or magistrates'
availability and courtroom space.
6. Enforcement
There is a lack of enforcement procedures for
judges in the more difficult private law cases, principally where
a parent refuses contact between the non-resident parent, generally
the father, and the children. These are set out in detail in the
Children Act Sub-Committee Report "Making Contact Work: A
Report to the Lord Chancellor on the Facilitation of Arrangements
for Contact Between Children and their Non-residential Parents
and the Enforcement of Court Orders for Contact" (2002) and
in the judgments of Munby J in Re D (Intractable Contact Dispute:
Publicity) [2004] 1 FLR 1226 and Bracewell J in V v V [2004] 2
FLR 851.
SOLUTIONS
I very much welcome the Green Paper, Parental
Separation: Children's Needs and Parents' Responsibilities and
the issues it has raised and seeks to address. Any starting point
needs to acknowledge that the child has to come first; that they
are not packages, but people. Parents must realise this and put
their own power battles behind them. They must also take responsibility
for their actions and decisions which affect their children. The
court should be seen as the place of last resort and any improvement
to the current system will require all involved to look more imaginatively
at engaging parents with children who separate without going through
the court process. This requires a widespread culture shift for
all those engaged in the process.
I set out below, and in an annex to this
paper, the new proposals which I hope will improve the situation.
It is important, however, to remember that there is likely to
remain a hard core of cases which may have to be resolved by the
court process, some of which are beyond the power of anyone, including
judges, to resolve.
The private law framework programme attempts
to deal with some of the problems raised above. It is in principle
agreed by the judiciary, CAFCASS, the Court Service, DCA and DFES,
the Family Bar and Family solicitors. While I very much hope it
will have a significant impact on the current private law climate
I am certain that the framework on its own is not a solution to
all the problems. Some important aspects of the framework are:
— On the first application made by
a parent there should be a first directions hearing if possible
within four to six weeks.
— Once proceedings have been commenced,
the requirement of both parents to attend the first hearing (as
well as older children if appropriate), with a view to seeking
settlement with the assistance of the court at the first hearing
and a CAFCASS officer.
— If conciliation fails and the matter
is to be tried by a judge that the issues between the parents
are identified by the district judge at the first hearing so as
focus the CAFCASS report on the essentials and to reduce the ambit
(and the length) of the court hearing.
— That orders for contact are monitored
by CAFCASS officers (eg by way of telephone). If handover does
not take place, or if an order is breached, all efforts should
be made to get the case back before a judge within a short timeframe,
eg within two weeks, in order to try to avoid the parties becoming
entrenched in their dispute.
— Judicial continuity of cases (all
of which will be dependent on the pressures on judges who may
also hear public law care work, finance work, domestic violence
cases and any other cases that compete for their time).
— In the small number of cases that
cannot easily be resolved more flexible and imaginative procedures
used to deal with the issues with the hope that the judiciary
may be provided with enforcement tools to encourage compliance
with contact orders (an example is a Family Assistance Order which
has not proved to be of as much benefit as it had been hoped.
An amendment to the legislation to improve its application and
usefulness would give considerable support in some cases to make
contact between the non-residential parent and the child more
successful).
It is hoped that the private law framework will
have two main effects:
1. A reduction in the overall number of
cases in dispute; and
2. A speedy resolution to the issues of
disagreement between parents on arrangements for contact, leaving
only a small number of cases requiring court intervention.
A national rollout of the framework is intended
to take place over the next few months, particularly the introduction
of in court conciliation in all county courts (which do not already
have in court conciliation projects) which hear residence and
contact cases. The successful implementation of the private law
framework will of course be subject to a number of factors including
the availability of CAFCASS officers and suitable court facilities.
In addition to the framework there is at present
an early resolutions pilot being run at three centres. Cases are
screened for the pilot either by legal advisers or judges and,
once admitted to the pilot, parties are given an information pack
and are expected to attend separately two facilitation groups
over a period of eight weeks, with a final meeting attended by
a CAFCASS officer and both parents to develop a suitable contact
plan. It is hoped that this early intervention will minimise the
need for contested hearings.
I see these initiatives as engaging parents
to take responsibility. If we encourage conciliation and mediation
both parents, and even the child, can take ownership of the problem
instead of being one step removed and leaving it up to their lawyers
and the judges to resolve. If we can achieve a culture shift in
this direction then I can envisage invaluable progress.
Some members of the legal profession need also
to be engaged to reduce the adversarial nature of family proceedings.
It is important to encourage the legal profession to be facilitative
in order to resolve the disputes. Members of the Solicitors Family
Law Association and the Law Society Family Committee, have an
excellent protocol for dealing with private law children cases
which includes putting the interests of the child first and run
courses for solicitors. Members of the Family Law Bar Association
run useful seminars designed to train barristers to deal with
these issues. I would like to see all lawyers who work in family
justice to have a set of minimum standards to enable this shift.
The judiciary who try these cases are largely
specialist; are all selected to sit in family work and all receive
instruction from the Judicial Studies Board when they start sitting
in family cases (induction courses) and also attend specialist
continuation courses.
Rt Hon Dame Elizabeth Butler-Sloss DBE
President of the Family Division
29 October 2004
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