Evidence submitted by The Association
of District Judges
1. The Association of District Judges represents
all 414 district judges of the county courts of England and Wales.
Prior to their appointment as district judges, many would have
had lengthy and successful practices as lawyers in the family
law field either as solicitors or as members of the Bar. Included
within the Association's membership, but not formally represented
by the Association, are some of the district judges of the Principal
Registry of the Family Division. The Association does not represent
the District Judges (Magistrates Courts).
2. The district bench exercises a wide jurisdiction
in the family justice system. In the area of private family law
district judges can hear all disputes relating to contact and
residence. District judges deal with all undefended divorces,
give directions in those few which are defended, and in all divorces
deal with the division of the parties' capital and income, save
for matters reserved by statute to the Child Support Agency. In
the public law area of care work, specially trained district judges,
known as Nominated Care District Judges, act in teams with the
family care judge and case manage to trial those care cases being
heard in the county court.
3. District Judge Walker has been the Hon
Secretary of the Association since April 2000. He sits at Wandsworth
County Court which, as a Family Hearing Centre in London, has
a private law, but not care/public law, jurisdiction.
4. "A Vision for the Future" is
a paper which the Association wrote in the summer of 2004, before
the present inquiry was commenced, to help inform a debate which
Dame Elizabeth Butler-Sloss P had already initiated into proposals
for change in the family justice system. A copy of the paper is
annexed as Appendix A (not printed); annotations below indicated
as "Vision" are references to it.
5. "Parental Separation: Children's
Needs and Parents' Responsibilities" was a paper from HM
Government welcomed by the Association whose response is to be
found at Appendix B (not printed). References in the text
below are indicated as "Response"
6. Is the present system working well? The
Ministerial Foreword to the present consultation paper suggests
that the present system is not working well. The Association does
not necessarily agree. The vast majority of separating parents
(90%) are able to make satisfactory arrangements for their children
without the need for intervention by the courts and the paper
records a high level of satisfaction with those arrangements by
the parents who are able to reach agreement. Much credit must
go to those couples experiencing a separation or divorce who are
yet able to remember that they both remain parents of their children
and are able to communicate with each other as such. The immense
amount of work offered by solicitors in resolving, amicably and
quickly, potential contact disputes must equally be acknowledged.
The courts are therefore concerned with only the remaining 10%
of parents who are unable to reach agreement.
7. Within those 10%, it has to be accepted
that there are parents who will place considerable difficulties
in the way of meaningful contact; there are others who will fail
to enjoy the contact which it has been ordered should take place.
The courts cannot prevent family and social discord; they can
only deal with it when it happens. Often in that minority of cases
the relationships within the family are complex and there are
no quick and easy solutions. Trust between warring parents is
lost very easily but takes a long time to restore. Resolving these
problems can be immensely difficult. Courts constantly emphasise
to the parents the benefits of reaching a mutually acceptable
solution. Where issues remain unresolved it is vitally important
that the case is dealt with as expeditiously as possible in order
to minimise the harm to the children and their parents of a prolonged
dispute. This calls for the best and most effective use of available
resources (Vision para 74). Families and their children are the
most important resource that any country has; they are its future.
8. A Unified Administration will be introduced
into the court system on 1 April 2005. It will bring together
under the umbrella of HM Court Service what previously has been
the Court Service, providing the administration for the High Court,
Crown Court and county courts, and 42 independent Magistrates
Courts Committees. By creating one Unified Administration there
is for the first time the ability to look at the court estate
as a whole and to contemplate the creation of the very long-awaited
integrated family justice system. In other words, for the first
time there is the ability to introduce a Family Court.
9. Flexibility, however, within any family
justice system is essential if a unified system is to perform
effectively and efficiently (Vision para 45). The range of problems
with which the courts are presented is vast (Response paras 3-5)
and the system must be able to deal most appropriately with each
one. There is no "one size fits all" solution. Neither
is it appropriate necessarily to start from a belief that children
should spend an equal amount of time with each parent (Response
para 6) because of the myriad of school, work, home and childcare
arrangements. The welfare of the child and not the needs and wishes
of the parents must continue to be the paramount consideration;
a child is not a commodity to be apportioned between its parents.
Judges require a much wider range of powers than that which they
presently possess both to enable solutions to be found in what
at the moment are often seen as intractable stalemates between
two parents wholly unable to communicate with, or understand,
each other and to enable court orders, where necessary, to be
enforced.
10. Nominated Care District Judges. One
illustration of how increased flexibility could work is in the
public law care area where, at the moment, final care or supervision
orders may only be made either in the Family Proceedings Courts
or by circuit judges sitting as care judges in the county courts.
The district judges are not able to make final orders even though
Nominated Care District Judges have a pivotal role in the case
management of such cases. The number of care cases to be brought
before the courts is predicted to increase significantly; that
will impose strains on an already stretched system. A partial
answer would be for some, but not necessarily all, NCDJs to be
able to hear some of the simpler care cases by sitting in the
Family Proceedings Courts for that purpose; this could be achieved
by making NCDJs also Deputy District Judges (Magistrates Courts)
(Vision paras 104-107).
11. Out-of-court settlement. It is a truism
that any agreement reached by the parents is more likely to be
successful than arrangements ordered by a judge with which at
least one, and sometimes both, parent would not agree. Greater
access to information and advice is therefore always to be encouraged
(Response para 10), as is more out-of-court mediation (Vision
para 43). Courts themselves often adjourn cases for mediation
to be undertaken but it is not always the appropriate course,
for instance in cases of domestic violence. Compulsory mediation
in all cases would not be an effective remedy: for some families
who see the breakdown of a relationship as an opportunity to rehearse
past wrongs and resentments this will present a considerable challenge.
12. Reforms. Access to information, advice
and assistance from the professions, the availability of mediation
and conciliation schemes all have their place but it is becoming
increasing recognised that they are in themselves inadequate.
It is also a matter of concern that parents are increasingly unable
either to find a legal aid solicitor, if they qualify for such
assistance, or to afford to instruct a solicitor, if they do not.
Parenting plans may well be a useful additional tool, requiring
as they would both parents to discuss and agree the future arrangements
for their children (Vision para 63). District Judges could be
required to adopt a more active role in the settlement of disputes
in relation to children prior to the finalisation of divorces
(Vision paras 62 and 66); the parents themselves could be further
encouraged to reach agreement before a decree nisi of divorce
were pronounced (Vision para 64). And the Association await with
interest the evaluation of the current Family Resolution Pilot
Projects being undertaken in central London and elsewhere.
13. Framework for Private Law. The President
announced, simultaneously with the launch of the Consultation
Paper, a Private Law Programme that it is hoped will improve the
resolution of residence and contact disputes. Every such case
would be listed before a district judge for a first hearing within
four to six weeks of the issue of the application.
14. Interventionist role. By virtue of being
a tribunal of one, the judge is able to adopt an interventionist
role, urging the parties, and with the support of a CAFCASS officer
also in court, towards a settlement. This happens already in most
courts; in-court conciliation is already routine (Response para
8, Vision para 75) although the detail of such schemes often differ.
The district judge can almost invariably give an early and neutral
indication of the level of contact which would be appropriate
and encourage the parties to agree to a particular level of contact
or a phased programme of contact which will either render further
litigation unnecessary or at the very least ensure that progress
is made (Vision para 76). The settlement rate on the day is often
considerably in excess of 50%.
15. CAFCASS reports. At present reports
from CAFCASS are ordered in many of the cases which remain unresolved
despite the interventionist approach of the district judge. This
is especially so if residence is in dispute or if there is an
objection to any form of contact taking place. The reports themselves
are often lengthy. The President's proposals, which are wholeheartedly
supported by the Association, envisage instead that the district
judge will have identified in the order s/he makes the areas of
disagreement between the parties; CAFCASS would then provide much
shorter and more focussed reports. The hope is that they would
also be provided more quickly which would enable the final hearing
to take place within a shorter timeframe than is presently occurring.
16. A review by CAFCASS and by the courts.
It is not unknown for contact arrangements to break down within
a very short while of their being agreed or ordered. It has therefore
been agreed between the President and CAFCASS that, once individual
courts implement the new Private Law Programme, CAFCASS officer
will be under an obligation to check soon after the relevant court
hearing that the contact arrangements are working satisfactorily.
If not, the CAFCASS officer will notify the court. The Association
has agreed with the President that in such instances the contact
application will be relisted for a review hearing within no more
than two weeks of the court hearing from CAFCASS. At that hearing
it would be intended to resolve whatever difficulties might have
arisen.
17. Gatekeeper role. Whilst in some Family
Proceedings Courts there are suitable and trained legal advisers
who might be able to take on the interventionist role at a first
hearing, the Association believes that the district judges should
assume the gate-keeping role in the majority of cases and that
therefore all private law residence and/or contact disputes should
commence in the county court (Vision paras 53-58 and 74-76). Where
an application does not settle at the first hearing, the district
judge should consider whether it is suitable for transfer across
to the Family Proceedings Court having regard to clearly defined
criteria (Vision paras 85-91). There are in the family jurisdiction
four levels of judiciary—High Court judges, circuit judges,
district judges and the lay magistracy—and to ensure the
maximum use of judicial resources and to achieve the speediest
possible resolutions it is essential that the gatekeeper transfers
across to the Family Proceedings Court those cases which properly
belong there. Ideally, all levels of judiciary would be under
the one roof, as they now are in Birmingham, but this is not necessary;
co-operation between courts and the sharing of diary information
can overcome many of the deficiencies in the Court Service estate
(Vision paras 120-123).
18. Local Plans. Since November 2002, with
the introduction of the Protocol for the Case Management of Public
Law cases, there have been local plans agreed between each county
court care centre and the family proceedings courts within its
area. The plans set out the arrangements for the disposal locally
of the public law work. The Association believes that it would
now be appropriate for a Private Law Protocol and Local Plans
to be introduced in respect of section 8 residence/contact work,
and would hope to play a full part in helping to draft such a
Protocol and the Local Plans (Vision paras 83 and 92).
19. Judicial Continuity. This is absolutely
essential to any successful system for conflict resolution in
the family arena. Bracewell J in V v V [2004] EWHC 1215 (Fam)
referred to the existence of 17 court orders made by 16 different
judges. Her Ladyship echoed sentiments expressed by Munby J in
Re D [2004] EWHC 727 (Fam). The Association believes that most,
if not all, family cases, irrespective of their precise nature,
benefit from judicial continuity and that such continuity has
considerable resource benefits. The parties benefit from knowing
that the facts of their case will be well known to the judge to
whom the case is allocated. They should also benefit from consistency
of approach. Since cases seldom consist of only one element that
judge will be able to take a holistic view of the case and, where
necessary ensure that all elements of the case are progressing
together so that a final hearing of any financial dispute is not
delayed by slow progress within the main suit or that where the
future residence of any children is in dispute that dispute is
resolved prior to any final financial hearing (Vision paras 46-50).
Judicial continuity is likely to be more difficult, but not insuperable,
to achieve in the Family Proceedings Courts where, by their very
nature, lay magistrates are not members of the permanent judiciary
and do not sit alone.
20. Contact centres have a crucial role
to play in cases where contact, for whatever reason, needs either
to be "supported" for a short while, or "supervised"
for perhaps longer. However, pressures on their resources often
mean that the most contact they are able to offer is for a limited
period of two hours once every two week. This is often considered
unsatisfactory. Their number, and level of support offered, need
to be increased (Response para 16) by central planning and by
the allocation of resources.
21. Family Assistance Orders. The Association
welcomes the proposed extension of Family Assistance Orders as
set out in paragraph 81 of the consultation paper "Parental
Separation". Many FAOs could—but are not—ordered
by judges at the moment because of their limited time span and
the delays in the allocation of such orders by CAFCASS or by local
authorities. Instead, a very similar effect is often achieved
by ordering a review of an order in (say) six months and asking
for a short addendum report by the CAFCASS officer. The principal
value of the report is often in the continued involvement of the
CAFCASS officer as much as in the text of the report itself (Response
para 14)
22. Enforcement. Unfortunately, however,
some cases defy all attempts at resolution; court orders presently
go unenforced. The frustrations of those not able to enjoy contact
with their children are understood. As Bracewell J said in V v
V, there are only four options at the moment and all can be unsatisfactory:
imprisonment (suspended or otherwise), the imposition of a fine,
the transfer of residence to the other parent and "to give
up". Legislation is required to introduce, in appropriate
cases, the ability for the judge to refer parents to mediation.
Family assistance orders merit reform. Judges should be able to
refer a defaulting party to information meetings or parenting
classes (V v V para 12), or even if appropriate to a psychiatrist
or psychologist; one or both parents might benefit from an anger
management course. Either parent might need to be subjected to
a community punishment order, or even ordered to pay compensation
when his/her actions have caused the other parent to suffer a
financial loss (V v V and also Vision 95-98). Such interventions
will, however, have cost and other resource implications (Response
para 17), and may not always be appropriate.
23. In conclusion, the Association has welcomed
the opportunity to participate in the inquiry being conducted
by the Constitutional Affairs Committee. The district bench is
proud of its role in the family justice system but equally is
all too well aware of the present problems which HM Government's
consultation paper seeks to address.
District Judge Michael J Walker
Hon Secretary
Association of District Judges
October 2004
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