Evidence submitted by Hon Mr Justice Ryder,
High Court Family Division
PRIVATE LAW
Disputes involving parents and children are
frequently characterised as intractable. Fortunately, for the
vast majority of those involved, they are not. Most parents are
willing and able to come to wholly appropriate agreements about
the way they share their equal parental responsibilities so as
to provide for the best interests of their children. When relationships
break down, some parents and some children need help, whether
that be informal assistance from a lay advisor or voluntary agency
or more formal relationships with professional advisors and ultimately
the family courts. Even in these circumstances a significant majority
of problems are resolved without a contested court hearing.
The modern emphasis on residence and contact
orders is no more than a reflection of an historic fact: prior
to the Children Act 1989 there was a similar emphasis on obtaining
custody, care and control and access orders. Despite the statutory
intention of the "no order" principle, it remains an
aspect of adult human nature to construct a defensive position
by court applications and orders. For some, most particularly
those who have been abused or who are at risk, there are very
real safety issues that demand the earliest intervention and protection
of the courts. For others, unless there be rapid, enforceable
and consistent access to a humane family justice system, the very
system and its use by others can become an instrument in an adversarial
battle.
Modern case law and judicial commentaries, examples
of which are before the Committee, have repeatedly emphasised
why the family justice system fails the most needy. Until recently,
the very existence of a family justice system might have been
questioned (rather than simply the existence of specialist judges
and courts). Some of its defects are merely structural and can
be remedied by effective management of existing resources; others
demand the acceptance of the need for new remedies, better enforcement,
a strategy for the justice system and for each case that is heard
within it and the better targeting and allocation of scarce resources.
The implementation of CASC recommendations to
improve remedies, support services, education, modification and
treatment options and enforcement is long overdue. This has been
a constant theme of the judiciary for a number of years. The commitment
to implement is welcomed but concern remains as to the timescale,
the commitment to Parliamentary time (ie the priority of that
commitment), the lack of engagement of the NHS (see below) and
the funding of the options that should be made available.
— The draft family justice strategy
identifies the earliest window as 2006—this is simply unacceptable.
— The green paper excludes the
possibility of referral to a health services professional (eg
a consultant psychologist or psychiatrist) on the apparently false
basis that that would provide for an unethical compulsion to receive
healthcare treatment. The proposal was for compulsory referral
for consultation (not "treatment") with named experts
who were willing and able to provide the advice services which
are necessary and which are so frequently engaged much later in
the court process when sadly they can be less effectively used
because of the increasing entrenchment of parties over time. There
is equally no proposed compulsion on a healthcare professional
to provide the service—the clinicians who are able and willing
to work in this field already make themselves available. It is
probably the case that there are resource implications to a formal
commitment by the DH/NHS which are being avoided by the private
instruction of clinicians or their funding by the Legal Services
Commission.
— The Green Paper proposal should
be expanded to include this option which was unnecessarily removed:
the merits of funding can be determined by the judge on the facts
of the individual case.
— The commitment to funding of
inter-disciplinary support services needs to be clear. Just as
in the case of CAFCASS and its implementation, it would be less
than helpful to give a commitment to provide support services,
improved remedies and enforcement options if the burden falls
on existing agencies without new money or the voluntary sector
without funded service level agreements.
The judiciary are committed to identifying and
implementing case management systems that provide for judicial
continuity, consistency of approach and the earliest emphasis
on out of court conciliation and alternative dispute resolution
options. The President announced the implementation of a new Private
Law Programme by the immediate introduction of a Private Law Framework
(a template to enable forward planning) on 21 July this year.
The details of the Framework were shared with Government during
the writing of the Green Paper and have informed the proposals
set out in the Green Paper. The Programme was issued on 1 November
2004 and will be implemented in all 52 family court areas by local
agreements under the direction of Designated Family Judges approved
by the President. The main features of the Framework/Programme
are:
— Introduction of an early first
hearing (a First Hearing dispute resolution appointment) for every
private law application commenced in the county court by "gateway"
district judges with family tickets.
— Gradual roll out of an in-court
conciliation service provided at selected centres hearing family
cases with the attendance of CAFCASS Officers at the First Hearing.
— Development of locally available
court directed referral opportunities for family resolution and
other services, support, facilitation, treatment and therapy alternatives
to court proceedings.
— Introduction of listing arrangements
to provide judicial continuity and case management, urgent review
by judges at short notice, monitoring and facilitating of contact
orders and enforcement hearings.
The private law programme has the potential
to significantly enhance the quality of outcome of private family
law disputes as follows:
— By the referral of families
to family resolutions pilot projects, conciliation and mediation
services as an alternative and necessary precursor to the court
based process.
— By the constructive use of the
existing CAFCASS services so as to facilitate the court's orders
and the parties' agreements.
— By diverting scarce CAFCASS
resources from report writing to problem solving and facilitation.
— By the ability to measure the
outcome against the aim.
— By the provision of judicial
continuity and urgent enforcement and review to act before disputes
and positions become entrenched.
— By more effective consideration
of safety issues at the earliest stage to protect the vulnerable
from actual and system abuse.
The concept of a "strategy for the case"
identified by Wall LJ in a lecture delivered to the NAGALRO Autumn
conference (entitled "Are the courts failing fathers?")
is strongly supported. Likewise, a more positive emphasis on the
representation of the child is recognised (see President's Practice
Direction- Representation of Children in Family Proceedings [2004]
1 FLR 1188, and Munby J's paper "Making sure the child is
heard" May [2004] Fam Law 338). They are two of the keys
to the provision of a non-adversarial system. The private law
programme gives effect to the strategy for the case by requiring
the parties and the court to identify what it is that needs to
be achieved as an aim (and a timescale where that can be identified)
so that the parties positions and the case management and conduct
of the case can be measured against the aim. The emphasis on CAFCASS
and the court identifying the aim, the issues and each of the
parties' positions is designed to help parents understand how
their decisions and positions affect their child enabling them
to construct a plan which responds to their child's needs, wishes
and feelings as well as their own. The renewed emphasis on the
child's wishes and feelings in private law proceedings (whether
represented on paper or through an advocate) is a timely reminder
of the statutory provisions and good practice principles that
already exist.
It must be recognised that from the perspective
of the falsely accused parent or the victim denied the truth,
an adversarial approach to the facts in issue is necessary and
in any event there are the essential protections in articles 6
and 8 of the ECHR. Those protections must be distinguished from
the often mis-directed criticism of the family courts as being
adversarial. The system is inquisitorial, it is the parties that
are adversarial. What is needed is a strong(er) emphasis on mechanisms
that re-inforce the inquisitorial process, such as those suggested
by Wall LJ and Munby J.
The private law programme will only be able
to be implemented in full if:
— The CASC recommendations are
given legislative effect.
— The family resolutions pilots
are extended nationwide.
— Funding is guaranteed for CAFCASS
to provide support and facilitation services.
— Funding is provided for other
agencies (eg for mediation and support) by way of service level
agreements.
— Sufficient specialist judiciary
and courtrooms in dedicated specialist family justice centres
administered by family court staff are guaranteed.
PUBLIC LAW
The Public Law Children Act Protocol implemented
on 1 November 2003 was a judicial initiative to dramatically improve
the outcomes in public law cases, in particular by reducing delay.
It built upon a previous and very successful project to change
the manner in which matrimonial finance proceedings are determined.
The exercise was completed in partnership with the Court Service,
CAFCASS, the LCD (as it then was) and their identified stakeholders
in the family justice system. The judicially led process was undertaken
by a Lord Chancellor's Advisory Committee convened at the request
of the President. The report to the Lord Chancellor of the advisory
committee was unanimously supported by the contributing interest
groups. Not only has the Protocol and its associated Practice
Direction begun to demonstrate real improvements in the quality
and timeliness of family justice in public law proceedings but
the essential principles upon which the exercise was based have
apparently been adopted by the DCA and the Court Service to inform
their development of a future justice strategy.
The principles upon which the report and subsequent
Practice Direction and Protocol were based were developed by a
judicial working party having regard to research and empirical
analysis in this and other jurisdictions (eg Australia, New Zealand,
Canada and the USA). They are the first modern re-statement of
multi disciplinary non-adversarial (ie inquisitorial) good practice
in a generation and warrant close examination by the Select Committee.
The Practice Direction, Principles and Advisory Committee Report
are to be found at pp 81 to 95 of the Protocol. While it is inadvisable
to summarise further that which is already in the form of an aide
memoir, the principles can be stated as follows:
— A statement of principle that
is both human rights and best interest compliant known as the
"overriding objective".
— Continuous and consistent judicial
control of proceedings by a trained specialist judiciary (including
the magistracy)—"judicial continuity".
— The identification, promotion
and application of multi-disciplinary "best practice"
to the family process which encourages out of court alternative
dispute resolution and minimum predictable standards for in court
resolution.
Despite the unanimity of approach to the production
and implementation of the Protocol, the advisory committee identified
what were described as "major obstacles" to the success
of their endeavours, which remain very relevant one year later:
— The shortage of family court
sitting days (ie both the availability and number of trained judges
and courtrooms for them to sit in).
— The acute shortage of trained
professionals in social services departments and CAFCASS.
— The declining pool of specialist
lawyers who wish to undertake family work under the existing public
funding regimes.
— The shortage of experts who
wish to assist in best practice multi-disciplinary family dispute
resolution.
— The need for a radical change
of culture in the administration of justice so that the allocation
of judges and the listing of cases (both of which are judicial
not executive functions) is facilitated.
A subsequent report commissioned by Ministers
and written by Mr Ernest Finch in May 2004 strongly supports the
advisory committee's conclusions. It is to be hoped that the Government
and Her Majesty's Court Service will continue to have regard to
these materials in their plans to improve the delivery of justice
year on year. The Committee may wish to consider the detail of
some of the problems that can be identified, for example:
— The continuing shortage of trained
professionals who are willing to work in local authority social
services departments and CAFCASS.
— The benefits of providing and
improving advocacy and support services (lay not just legal) for
vulnerable people (children and adults) at the earliest opportunity.
— The lack of any effective electronic
diary system for judicial listing of cases.
— The inadequacies of the existing
IT resources available to the new unified administration and in
particular in their production of court orders, reliable statistics
and as a court record or file.
— The need to make more effective
the judicial oversight of all family court resources by the local
senior family judge (known as the Designated Family Judge).
— The need to co-locate family
court resources to improve the use of scarce resources and their
management by the DFJ.
— The need for oversight of family
justice by an inter-disciplinary National body with local fora
(now implemented by the creation of the Family Justice Council).
THEMES
There are coincident themes from the recent
judicial analyses and proposals:
— The need to build upon the identification
of a family justice strategy.
— The need to build upon the principles
underlying the judicial initiatives of the Protocol and the Programme
to provide a high quality and rapid inquisitorial system of family
justice.
— The need to identify and fund
pre-court and out of court alternative dispute resolution mechanisms.
— The need to re-emphasise the
local management of family justice by the DFJs.
— The need to co-locate family
justice resources.
— The need to provide sufficient
specialist judges and sitting hours.
— The need to provide sufficient
court rooms and associated facilities.
— The need to provide effective
electronic diary, listing and court record systems.
— The need to ensure that the
funding of CAFCASS and other specialist support services is guaranteed.
Hon Mr Justice Ryder
High Court Family Division
28 October 2004
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