Evidence submitted by The Magistrates'
Association—Family Proceedings Committee
The Magistrates' Association welcomes the opportunity
of submitting this paper, which supports our response to the consultation
document Parental Separation: Children's Needs and Parents' Responsibilities,
and is focussed mostly on private law proceedings under the Children
Act 1989 as we understand this to be the principle concern of
the Committee's inquiry. We have made observations about family
proceedings courts' (FPCs) public law jurisdiction under the Children
Act 1989 where we believe them to be vital to understanding their
overall workload. It is made with the support and concurrence
of the Justices' Clerks Society.
In summary, FPCs are made up of experienced,
knowledgeable, enthusiastic magistrates who have the capacity
to deal with significantly more work thus reducing delay in the
family justice system whilst giving a better return on public
resources.
Is the family court system being run effectively?
There is significant capacity in FPCs to do
more work. Historically, FPCs completed two thirds of all public
law Children Act cases, and one third of all private law work.
A variety of pressures has caused these proportions to fall. Less
than half, and still falling, of public law now stays in FPCs;
only 15% of private law applications are made in FPCs. We believe
that the introduction of the public law protocol has caused more
cases to be transferred to care centres. There is no evidence
that cases in general have suddenly become more complex because
of the introduction of the protocol and we believe that many of
the transferred cases could be successfully completed more swiftly
by remaining in FPCs.
Two principal factors appear to be causing the
downturn in private law work:
— Cases start in either the FPC
or county court at the preference of the applicant. The Framework
for Private Law, launched last summer, provides for increasing
in-court mediation services in county courts—without any
concomitant increase in FPCs. This will only increase the trend
for more work to be handled in county courts even though cases
can generally be heard much more rapidly in FPCs.
— Fees for publicly funded applicants
are higher in county courts than in FPCs. We understand that this
was designed to reflect the greater complexity of cases being
heard in the former. As the applicant chooses the venue, the Legal
Services Commission rarely challenges it, and almost no judge
transfers to the FPC matters that have started in the county court,
we find it difficult to understand the continuation of this differential.
It does not appear to contribute to either the economy or effectiveness
of justice.
The Association believes that all private law
matters should be started in the FPC (save only where there are
pressing reasons such as a live divorce case) as public law ones
do now, with allocation criteria for transfer. There is absolutely
no credible evidence of concern about the justice being delivered
by the lay magistracy in family proceedings; contact and residence
applications should be treated in the same way as care proceedings.
Members of the government and the senior judiciary
make many positive and complimentary comments about the role of
the lay judiciary in family justice. Those comments must be supported
by immediate action to shore up FPCs so that they can make a full
contribution to the effectiveness of the family courts. There
is no need to consider alternative and almost certainly more expensive
approaches to tackle delay until action has been taken, and demonstrably
failed, to utilise the full capacity of FPCs. Failure to address
what is happening will cause further erosion in workload, confidence,
and then willingness of magistrates to continue to do the work.
Do family court judges have sufficient powers?
FPCs should be given the same enforcement powers
as county courts; it is illogical for it to be otherwise. This
lack provides one more justification for parties to use county
courts when in all other regards FPCs could do the job.
Family magistrates do, however, have extensive
powers, backed by significant experience, expertise and training
but they are underutilised. For instance, magistrates were given
powers to make non-molestation orders and received expensive and
time-consuming training, but then the work went elsewhere. This
is ineffective use of resources.
What issues are there about delays caused by the
current system?
The paucity of reliable data ahead of the introduction
of the public law protocol makes it is impossible to draw objective
conclusions about its impact on delay. Six major obstacles were
identified by the advisory committee in its report; all remain
and each is the source of significant ongoing delay. However,
what is abundantly clear is that there is significant underutilised
capacity in FPCs which could and should be used to address the
delays being encountered in private and public law work in both
county courts and care centres. It is ironic that at this time
there is an increasing drift of work out of FPCs.
The Association is concerned that the increasing
focus on public law is causing private law timescales to lose
attention. There will no longer be a PSA target in the private
law arena. Much is said, and rightly so, about the need to get
contact cases into court (where that is the appropriate venue)
quickly. When one or both parties are publicly funded delay has
obvious consequences for the public purse. In all cases it has
an effect on children and their relationships with their parents.
More use of FPCs could have a positive impact on resolution timetables.
In order for any reversal of the current drift
of work to county courts to be effective, the expertise, enthusiasm
and commitment of highly trained—and available—lay
magistrates which already exists must be backed by competent legal
advice. The work of the FPC creates a unique relationship between
magistrates and legal advisor. Just as magistrates need to be
willing and interested in family work—and be allowed sufficient
time to develop and maintain expertise—so must legal advisors.
Are people using the family courts getting the
service they deserve?
There is a real opportunity, with the arrival
of HMCS, to create an integrated family court. For this to become
a reality there needs to be clear evidence that all of the elements
are joined up and with themandate to be a service based on demonstrable
expertise: administrative staff, IT, hearing centres and judiciary
(part-time, full-time and legal advisors).
It is not clear that there is a common understanding
of what users deserve from family courts. Indeed, as current events
demonstrate, there is a real need for a public debate about the
purpose of the family justice system. As our response to the government's
consultation makes clear, we are supportive of programmes to divert
people away from the courts where possible. We therefore take
the Committee's last question as referring to situations where,
for whatever reason, court is where they have finally ended up.
We would say that, as an irreducible core, users
deserve affordable local access to a fair, impartial determination
of their case from an experienced judiciary in a timescale that
meets their needs and those of their family. That determination
should be informed by timely expert advice (focussed on locally
available interventions) whenever required, and the judgement
communicated in a way that all the users understand. Any orders
should be underpinned by resources to ensure their implementation.
All this should continue to be built on the principle of the paramountcy
of the best interests of the children.
Against that background we believe that the
principal challenges lie in the:
— Accessibility of the service
(local hearing centres).
— Timeliness (access to hearings,
availability of welfare reports).
— Universal provision of support
services either before an order is made or to support one (mediation,
contact centres, family assistance orders for example).
— Fully-funded enforcement provisions
(CAFCASS follow-up, parenting programmes, behaviour modification
programmes, community-based orders).
Family proceedings courts have the potential
to be a vital part of the resolution of these challenges—but
only if urgent action is taken to reverse the downturn in their
workload.
The Magistrates' Association
Family Proceedings Committee
November 2004
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