Appendix: Speech by the President of the
Family Division
FAMILY JUSTICE AT THE CROSSROADS
The Hershman/Levy Memorial Lecture delivered by
The Rt Hon Sir Mark Potter to the Association of Lawyers for Children,
2 July 2009
Thank you for asking me to deliver this year's memorial
lecture in memory of two men whose lives were literally dedicated
to service in the Family Justice System and particularly to the
interests of children. They were also lawyers steeped in the development
of child care as reflected and promoted in the provisions of the
Children Act 1989 and they would no doubt have been vocal, if
they were still alive, in relation to the subject I have been
asked to address in my lecture tonight, namely the problem of
resources and its effects upon the Family Justice System which
plays such a vital role in relation to the safety and well being
of children in the throes of family breakdown.
"Children are our future. We depend on them
growing up to become fulfilled citizens as well able to contribute
successfully to family life and to the wider society. It is of
fundamental importance that the life and future development of
every child is given equal importance. Every child needs to be
nurtured and protected from harm."
Those are the opening words of the Laming Report[107]
issued in the wake of the case of Baby P which came forcefully
to public attention in November 2008 at the conclusion of the
criminal trial of those responsible for his death. One of its
immediate side effects was to cause a dramatic upsurge in the
number of care proceedings commenced by local authorities following
a downward trend over the preceding 6 months while local authorities
came to terms with the provisions of the Public Law Outline[108]
and the large increase in court fees payable by them as the price
of issuing proceedings in the course of their child safeguarding
duties.
The context of Lord Laming's report, and the matters
on which it principally focussed, were failures in the local authority's
safeguarding system whereby care proceedings were never instituted
in a situation where clearly they should have been. Consequently,
the recommendations of the report—including those requiring
the Department of Children Schools and Families (DCSF) sufficiently
to resource children's services so as to ensure that early intervention
and preventative services have capacity to respond to all children
identified as vulnerable or in need[109]—are
principally directed to improvements in local authorities' safeguarding
prior to proceedings, in order to prevent repetition of such a
tragedy. However, the point is well and forcefully made by Lord
Laming that the duty of local authorities to commence and prosecute
care proceedings in the courts is not a separate, but an integral,
part of their overall duty to safeguard and promote the child's
welfare, the role of the court being to decide where the truth
lies in the event of dispute and what the legal consequences should
be. In this context Lord Laming identified the need of the Ministry
of Justice as the responsible department to take immediate action
to address the length of delays in care proceedings in order (as
he put it) to ensure that the Ministry is delivering its commitment
to meet the timetable for the child[110].
The terms of his recommendation were that the Ministry should:
"Lead on the establishment of a system-wide
target that lays responsibility on all participants in the care
proceedings system to reduce damaging delays in the time it takes
to progress care cases where these delays are not in the interests
of the child.
The Government response to this recommendation published
by the DCSF and presented to Parliament in May 2009[111],
was as follows:
"the Ministry of Justice is working closely
with the Department for Children Schools and Families to establish
a system-wide target for reducing delays that draws in all participants
within the care proceedings system. Whilst the detail is yet to
be finalised with the relevant key partners, the intention is
to have an overarching objective, related to the timetable for
the completion of proceedings for an individual child, supported
by a suite of Key Performance Indicators owned by individual participants
in the system. This will include commitments to continuous performance
improvement in order to avoid unnecessary delay by Her Majesty's
Courts Service, the Legal Services Commission, and the Children
and Family Court Advisory Support Service. Improvement and Success
will be measured in a Balanced Forecast."
It is noteworthy that neither in Lord Laming's recommendation,
nor the Government response, does any reference appear in relation
to the provision of resources or the eventuality that a system
already struggling under the constraints of limited and reducing
budgets, may prove unequal to the task of achieving the 'continuous
performance improvement' to which they will be obliged to commit
themselves.
That, as it seems to me, is a very unfortunate omission.
It is indeed a failure to acknowledge the elephant which, if it
is not already in the room, has already planted its front feet
well over the threshold. Overarching objectives, key performance
indicaters and commitments to continuous improvement are all very
well, but they cannot alone achieve anything significant if they
are unrealistic in relation to the resources available to the
key partners in the system.
As Head of Family Justice, I have since my appointment
become increasingly familiar—and in the last 12 months or
so, outside court hours, almost wholly preoccupied—with
the problems already being experienced by the key participants
in the Family Justice system who are now experiencing restrictions,
and in various cases are under instructions to make reductions,
in the resources available to them to perform their interlocking
roles.
In my regular visits around the country, I have been
hugely impressed by the good will and enthusiasm of all those
involved in the Family Justice System in seeking to make the system
more efficient while ensuring better outcomes for children in
difficult times. Local authorities, social workers, Cafcass, children's
lawyers, court staff and judiciary are flat out (literally so
in some cases!) to achieve this objective.
It is the position in which the family justice system
now finds itself as a result which has dictated my choice of title
for this lecture. A cross-roads is something one encounters as
one travels along a particular route. It requires one to pause
and make a choice as to one's direction of travel. In this case,
no doubt, the appropriate starting point of the road well travelled
is the Children Act 1989, a ground-breaking and universally admired
piece of legislation which provided for a uniform code of law
and procedure governing the care and upbringing of children applicable
across the board and which now operates in what has effectively
become a unified family court. It also provided a uniform code
of law governing the duties of local authority and social services
to be provided for children in need, which laid to rest most of
the defects in child protection law and practice which had previously
existed and in relation to which the Family Division of the High
Court, over the years, had expanded and developed its jurisdiction
in wardship, in order to supplement the defects in the two main
statutory schemes which had hitherto been applicable [112]
and certain lacunae in law.
However, I now propose to "fast forward"
to the year of my appointment in April 2005. By this time The
Children Act had been in force for almost 15 years and its policy,
philosophy and procedures had thoroughly bedded down. However,
in the area of public law a number of features of the child protection
system, together with a shortage of resources, had combined to
render care proceedings more extended and more expensive than
was anticipated or intended at the time the Act was passed. So
far as the safeguarding of children by local authorities is concerned,
there was, and has remained, a general difficulty in the recruitment
and retention of social workers and others to do the demanding
and often harrowing work of protecting children from harm and
looking after them once harm has been done. From time to time
a tragedy such as those of Maria Colwell, Jasmine Beckford and
Victoria Climbie (to which the name of Baby P must now be added)
would arouse public outrage, giving rise to publicised inquiries
and a determination to improve. The general level of press reaction
and the search for scapegoats was, however, scarcely conducive
to recruitment. This position has continued to obtain and, its
alleviation by institution of the various measures set out in
the Laming Report can only be gradual and long term.
Meanwhile, the courts are obliged to continue their
role in public law care proceedings in the context of those problems
and in that context to resolve an increasing number of care proceedings
as speedily as they can.
It is plain from the structure of the 1989 Act, the
terms of the Review of Child Care Law which preceded it,[113]
and the terms of Lord Nicholls speech in the House of Lords in
Re S[114]
that, whereas it is the function of the court to adjudicate
and to make a care or supervision order if it finds that the threshold
conditions are satisfied and that such an order would be in the
best interests of the child, it is the responsibility of the local
authority to decide how the child should be cared for.[115]
However that is not a position which it has proved possible or
practical to preserve as a clear bright line since the Act was
passed, for a variety of reasons. Two such reasons are built into
the legal regime under which courts operate in care proceedings.
The remainder are non-legal in the sense that they are the product
of the various elements and resources of the child care system
within which the courts operate and which inevitably affect the
steps to be taken and the rate of progress made in care proceedings.
As to the legal reasons, first, the 1989 Act requires
the court to treat the welfare of the child as paramount in relation
to every order which it makes. Second, Articles 6 and 8 of the
European Convention on Human Rights (as well as ordinary notions
of justice and humanity) require the court to have regard for
family life and to accord a fair hearing to parents faced with
the removal of their children. Albeit European jurisprudence[116],
like the Children Act, recognises the primacy of the child's welfare
interests in children cases, those welfare interests require the
courts to have regard to the long term as well as short term interests
of the child. Thus the decision as to whether a child should be
taken into care, or whether it should remain with its natural
family under appropriate supervisory arrangements following expert
assessments of the family situation and/or after a period of "planned
and purposeful delay", inevitably involves the courts in
examining the care plan proposed as well as the primary question
of deciding whether or not the threshold for intervention has
been established.
As to the non-legal reasons, by 2005 the court had
for sometime been operating within a system where (whether for
lack of time, resources, or both) necessary social work or other
assessments had not been completed, or clear care plans formulated,
which were essential to an informed decision by the court. This
would, in complex cases, necessitate the instruction of experts
in the course of the proceedings, which would become delayed in
their progress by the extended reporting times required, the consequent
emergence of further issues, and (frequently) the intervention
of additional candidates as possible carers from within the extended
family of the child concerned.
As a result, by the time of my appointment, the length
and expense of public law proceedings had become unduly extended,
despite the existence of the 40-week disposal target imposed by
the Treasury through the DCA. While such delays were purposeful
in many cases, as affording parents the opportunity to establish
their suitability to retain care of their child within the family
or extended family with appropriate assistance, in a far greater
number of cases, (particularly in the case of very young children)
they were operating so as to prejudice the long term welfare of
the child, attachments being formed and ruptured in cases when
adoption or long term fostering were the ultimate outcomes.
An inevitable incident of delay in multi-party proceedings
is of course increased cost, and, when I was appointed President,
the question of delay and cost (with the emphasis on the cost)
in public law proceedings was receiving the attention of government
in the context of the Fundamental Legal Aid Review, to which I
was nominated by the Lord Chief Justice as the Judicial Liaison
Judge prior to my appointment to the Family Division. That review
identified two particular areas of disproportionate cost to the
legal aid fund as being. First and foremost, was the huge proportion
of the fund expended in respect of very high cost criminal
cases and, to a much lesser extent, but nonetheless requiring
urgent attention, the cost of care proceedings.
In July 2005 the review published its report entitled
"A Fairer Deal for Legal Aid".[117]
It highlighted the need to contain the expanding cost of child
care and related proceedings, in light of the fact that, while
their volume had increased by 37% since 1999/2000, the cost to
Legal Aid Fund had increased in real terms by 77%. It was recognised
that there were a number of cost drivers causing the latter increase,
in particular the proliferation of parties, the increasing use
of expensive experts instructed in the course of proceedings and
the number of expensive residential assessments to be paid out
of the Legal Aid Fund.
What it did not identify was a phenomenon of which
all engaged in the Family Justice System are acutely aware, namely
the steady rise in the proportion of proceedings involving ethnic
minority families with language difficulties and complex cultural
considerations, which not only add to the difficulties of social
services pre proceedings but substantially increase the length
and cost of court proceedings. As all judges can testify, the
need for an interpreter can double the length of court proceedings.
Having also identified the inherently high cost of
multi-party proceedings, the Review recommended a further, cross-government,
end-to-end review of the Child Care Proceedings system. This followed
in the form of the Child Care Proceedings Review, an interdepartmental
review with strong judicial input.[118]
The terms of reference of that review stated its first task as
being to:
"examine the extent to which the current system
for deciding care cases in the courts ensures all resources (including
children's services) are used in the most effective, efficient,
proportionate and timely way to deliver the best outcomes for
the children and families concerned."
The terms of reference included the obvious requirement
to: "Identify good/innovative practice which enables children
to be diverted away from court proceedings and, instead, to be
supported in their families where this is possible" The third
term of reference, much more radically, required the review to:
"examine the extent to which the core principles of the Children
Act 1989 are best met by the current overrepresented approach
within the courts, and examine whether these principles could
be better met by using a more inquisitorial system". It set
out two options to consider, namely (a) "investigating the
possibility of early low-level of judicial interventions to encourage
parents to resolve problems themselves, thus avoiding the need
for full court proceedings wherever possible and appropriate";
and (b): "examining whether the two stages of the court process
in Child Protection cases (establishing the facts and determining
the care plan) could be more formally separated with different
attendees, procedures and levels of legal representation, and
precisely where, and in what way, lawyers should be involved".
This last term of reference was no doubt included
because the Fundamental Legal Aid Review had agreed in its discussions
that, where proceedings are conducted within an adversarial system
in which a number of parties are represented and entitled to legal
representation and experts' assessments are largely being paid
for out of the legal aid scheme, the streamlining of processes
and the containment of lawyers' charges only tinker at the margins
of what is an inherently expensive process once proceedings have
been commenced.
In the event, the Review did not take the road, or
even explore the route, towards a so-called "inquisitorial"
or divided system. It limited itself to a number of unexceptionable
recommendations, which aimed to "ensure that families and
children understand proceedings and are, wherever possible, able
to engage with them; ensure that S.31 applications are only made
after all safe and appropriate alternatives to court proceedings
have been explored; improve the consistency and quality of S.31
applications to court; improve case management during proceedings;
encourage closer professional relationships".
In the wake of these recommendations and to achieve
those aims so far as they lie within the power of the judiciary,
once proceedings have started, a judicial team consisting of Munby
J, Coleridge J and Ryder J, in close consultation with the DCSF,
produced the Public Law Outline (PLO)[119]
which has now been in force for just over a year. Its provisions
were coupled with the rewriting of the DCSF statutory guidance
to local authorities which dovetails with the requirements of
the PLO and encourages local authorities to carry out assessments;
through family meetings to engage with families prior to proceedings;
and to prepare cases better before issue, where agreement is not
possible. Its other objective was to achieve uniform improvement
in case management on the part of the judiciary, focusing upon
essential issues and providing for efficient case management in
stages geared to the timetable of the child.
However, the success of these measures depends,—as
the proper safeguarding of children and the conduct of care proceedings
under the Children Act has always depended—upon the quality,
performance and resources of the principal players. Under that
heading, in addition to the local authorities and the parties,
I include of course Cafcass and CAFCASS CYMRU the organisations
which provide the personnel essential to the safeguarding of the
interests of children in the course of the litigation, namely
the child's guardian appointed under S.41 of the 1989 Act.
At this point in my Lecture, I should make clear
that I shall for convenience adopt the abbreviation of Cafcass
as covering both services, while making clear that hitherto, thanks
to the more generous funding of CAFCASS CYMRU by the Welsh National
Assembly, that service has been largely immune from the resource
difficulties and consequent delays which have affected Cafcass
in England.
So far, I have said nothing of the situation in Private
Law children proceedings, in relation to which, so far as the
courts are concerned, they are also highly dependent upon the
availability of Cafcass (a) as reporting officers and providers
of welfare reports in so many proceedings where difficult issues
in relation to residence and contact arise, and (b) for their
invaluable services in the brokering of agreement between the
parties at the First Hearing Dispute Resolution Appointment (FHDRA).
At the time of my appointment in 2005, that latter function was
being exercised under the provisions of the Private Law Programme,
recently introduced by my predecessor Dame Elizabeth Butler-Sloss.
At that time a substantial number of local schemes were in place
and others being extended, but they were limited at that stage
to county court centres and not available in most magistrates'
courts. Since then, of course, county court schemes have been
put in place nationwide, and are now being made available in the
Family Proceedings Courts to enable the process of "cascading"
down of appropriate cases to the FPCs under the new Allocation
to Judiciary Directions. It can properly be said that, without
the very high success rate achieved by the FHDRA, the working
of the family courts would virtually grind to a halt.
So far as the production of reports is concerned,
the difficulties faced by Cafcass in England, namely limited resources
and expansion of their functions on the ground, plus the overall
strains upon the family justice system to which I will now turn,
have regrettably meant that, in cases where agreement between
the parties has not been achieved at the stage of the FHDRA, long
delays have been encountered in the receipt of reports essential
to the progress of residence and contact disputes.
The statutory functions of Cafcass are to a) safeguard
and promote the welfare of children's; b) give advice to any court
about any application made to it in any family proceedings; c)
make provision for the children to be represented in such proceedings;
and d) provide information, advice and other support for their
children and their families.[120]
These functions are limited to family proceedings. Thus when Cafcass
was originally set up as a non-departmental public body it was
made answerable through its board to the Lord Chancellor, its
relationship being controlled in a framework document which vested
ultimate power in the Lord Chancellor's Department (now the MoJ)
for controlling the range of Cafcass work and the way in which
it was carried out. That position has not been maintained, however.
Following the constitutional upheavals associated
with the abolition of the Lord Chancellor as head of the judiciary,
Cafcass has become answerable to the DCSF and works within the
strategic objectives agreed by their sponsor department. The division
of responsibility between the DCSF to whom Cafcass are now accountable,
and the MoJ, as the body responsible for HMCS and the support
of the judiciary, is scarcely an example of "joined up"
government. It is in practice a serious fault line because, although
the functions of Cafcass (and hence their tasks and responsibilities)
are dictated, and may be increased, by the demands of the judges
and the MoJ, the DCSF, which is the budget holder responsible
to finance those demands, has its attentions and priorities largely
directed elsewhere
It is the unfortunate fact that since its inception,
Cafcass has experienced considerable problems with shortages of
staff, a lack of experienced guardians and consequent delay in
the allocation of cases. From the outset there were difficulties
in bringing about the centralisation of staff management and improving
budgetary control in respect of an ungenerous budget. Upon the
appointment of Anthony Douglas, its able and dedicated Chief Executive
in 2004, the task of rectifying this position has been vigorously
undertaken, but delays in reporting have persisted and in recent
times have increased to a position which is acknowledged to be
unacceptable. A number of factors have contributed to this.
I have already mentioned the surge of work in the
Public Law field occasioned by the case of Baby P. But, well before
that time, in various areas of the country, the courts were experiencing
mounting delays in the appointment of guardians and the rendering
of reports. In those areas, because of the shortage of staff I
have mentioned, local blitzes upon Public Law would lead to reduced
performance in the Private Law field and vice versa. Underlying
this has been the growing demands placed upon Cafcass's child
safeguarding function, which has eroded the time available for
reporting and welfare work.
S.7 of the Children and Adoption Act 2006 introduced
into the 1989 Act a new Section 16A, which requires Cafcass officers
to make a risk assessment in relation to any child in respect
of whom they are given cause to suspect risk of harm and to provide
that risk assessment to the court irrespective of the outcome
of the assessment, even if the Cafcass officer reaches the conclusion
that there is no risk of harm to the child. This provision was
passed against a background of reports by HMICA which had been
critical of Cafcass's safeguarding procedures and the widespread
and growing recognition and emphasis upon problems of Domestic
Violence between adult partners and their adverse effects upon
children. I understand that the imposition of the new S.16A provision
was regarded as 'cost neutral' by the Treasury and no extra budgeting
provision was made. If so, it appears to me an extraordinary example
of the triumph of wishful thinking over realistic assessment,
when it must have been obvious that the deployment of Cafcass
staff in these functions was bound to reduce (as it has reduced)
the amount of time available to individual officers for the purposes
of reporting, giving advice to the court and implementing contact
between recalcitrant parties.
At this point, I should make clear my view that hitherto
many judges have, following unsuccessful FHDRs, been over ready
to require full S.7 reports rather than simply to ask reporters
focussed questions before proceeding further. This tendency has
added to delays which might otherwise have been avoided. In this
respect, I am optimistic however that recent consultations between
the judiciary and Cafcass and the negotiation and current trialling
of a draft revised Private Law Programme, agreed and underwritten
by Cafcass, will assist progress in Private Law cases after the
FHDR.
Meanwhile, however, and for whatever reasons, by
November 2008, there were serious delays in the supply of section
7 reports up and down the country, most notably in Bristol, Sheffield,
Lancashire and Wolverhampton where the waiting time for section
7 reports in Private Law contested hearings was anything between
20 weeks in Wolverhampton and 30 weeks in Lancashire. Delays generally
have further increased rather than reduced since then, despite
fire fighting operations by Cafcass in particular areas. It was
approximately at this time that the dramatic upsurge in the number
of care proceedings commenced by local authorities to which I
have already referred began to occur. That surge of cases has
lasted to date, though it has begun to tail off in some local
authority areas. Thus, in addition to the problems of delay already
being experienced, which had begun to reduce following introduction
of the PLO, judges and the HMCS administration up and down the
country are now faced with the formidable problem of accommodating
this block of extra cases through an already strained system.
Quite apart from the problems which that presents to the limited
number of judges up and down the country available to try those
cases, the strain upon Cafcass's guardian service will be all
the more acute.
Faced with these mounting delays, and in discussions
with Anthony Douglas and the family judiciary, it is clear to
me that, whatever the long term solution to these problems, urgent
action is at once necessary to ease the position in the various
"hot spots" across the country. To that end, I am currently
engaged in a joint judicial exercise with Cafcass, CAFCASS CYMRU,
DCSF, MoJ and HMCS for a stop-gap scheme to set out those areas
in which, without compromising the interests of children, the
statutory duties and requirements of Cafcass, or the provisions
of the PLO, judicial restraint can properly be exercised in the
requirements which judges impose upon Cafcass in all those cases
where, upon proper analysis and consideration of the issues, reduced
or delegated activity by Cafcass guardians and reporters can be
sanctioned. This will reduce the time spent by the officers themselves
in activities which are not strictly essential to their safeguarding
and advisory functions.
Because of the need for urgent action; because of
the need for arrangements to be implemented before July; and because
the measures are limited to procedures appropriate as between
the judiciary and Cafcass for the better performance of their
functions, no wider consultation has taken place. This lecture
is therefore an opportune moment to give advance notice to that
branch of the legal profession concerned with children cases of
the lines of the proposed Guidance which will shortly be put into
final form.
Before the end of July, I shall issue Interim Guidance
setting out measures which may be adopted in the short term under
local agreements between Designated Family Judges and local Cafcass
service managers to reduce backlogs and delays in reporting and
the allocation of guardians having regard to the particular problems
in the area. It will not be in the form of a long term Practice
Direction, which is the form appropriate for implementation of
standard practice nationwide, but of Interim Guidance encouraging
the making of such local arrangements within particular parameters.
In Public Law it will permit care centres and/or
groups of courts to enter into duty guardian schemes with Cafcass
with the provision of advice at the first appointment to a solicitor
appointed under S.41(3) of the Children Act 1989, provided that
there is subsequent allocation to a named guardian prior to the
CMC, to be responsible for the future continuous conduct of the
case. This is a system long adopted at the Inner London Family
Proceedings Court and which has worked well there in the past.
Such assistance is likely to prove particularly welcome in Family
Proceedings Courts who are presently having to decide, at the
first hearing and without the benefit of a guardian, whether to
grant applications for children to be removed from home under
an interim care order. It will also provide that the guardian
need not attend fact finding hearings save in so far as he/she
is requested to do so by the court. At every hearing the court
will consider with the parties whether the guardian is to be required
to attend the next hearing in the case and will consider directing
the guardian to file an issues based final analysis and recommendation
in time for the advocates' meeting for the IRH rather than waiting
for the final hearing.
In Private Law the Guidance will encourage the making
of local agreements in court business committees to rationalise
the days and venues upon which FHDR appointments will be listed
to make the most effective use of judicial and Cafcass resources
in the local area. Detailed provisions will provide for the progressing
of cases and the making of directions in appropriate conditions
subject to the completion of safety checks. Where the safety checks
are not yet complete, but there is on the face of it no reason
to suppose the presence of risk, the court will be encouraged
to approve or formulate an appropriate order indicating
that it will, on the date fixed for the next appointment, make
an order in these terms without the need for further attendance
by the parties, provided that the safeguarding information which
becomes available through Cafcass is satisfactory.
The draft Guidance also encourages a critical attitude
to the necessity for full s.7 reports and sets out a menu of fixed
time, issue driven, reports to be considered with specified time
scales. Its provisions are consistent with the form of my revised
Private Law Programme currently being trialled.
The Guidance will make clear that I shall conduct
a review in January 2010 to consider how to stopgap measures provided
for have affected the operation of the courts and the support
they have received from Cafcass. It is at that stage that wide
consultation will take place, including, importantly, with the
Family Justice Council.
I must emphasise that, in agreeing what is in effect
a reduced service from Cafcass as a pragmatic solution to immediate
problems, I have made clear that such solution be recognised for
the interim scheme that it is, and the form of the document being
drafted makes this clear. It must not simply become or be adopted
as the benchmark for the future, save to the extent that it sets
out (as it does) what are recognised by Cafcass to be the appropriate
timescales for delivery of reports in "normal" conditions.
The whole point of the statutory provision of a guardian at the
outset in Public Law cases is that, from the start, the child's
interests should be represented and advanced from a point of view
independent of both parents and local authorities and the outcome
of steps taken for work done in relation to the child during the
progress of the case should be maintained and brought to the attention
of the court.
One of the principal matters I have in mind as rendering
vital a review in January 2010 is the substantial and menacing
shadow which hangs over the treatment of any interim working solution
as a long term criterion for Cafcass's working methods, namely
the current proposals of the Legal Services Commission in relation
to the remuneration of Family Law advocates. So long as there
are available experienced solicitors or counsel properly instructed
and familiar with the work, it is possible to relieve the guardian
of the need to be closely involved or present in court at various
stages of the case. However, if, as a result of
the LSC proposals, the future availability of such representatives,
already under threat, becomes a nationwide reality, the need for
the close attention of the guardian and increased participation
at all stages of the case will become essential. And this brings
me to the question of Legal Aid.
This Lecture is not the occasion for detailed examination
of the latest proposals of the Legal Service Commission in this
respect, although I am well aware of the concerns of the Association
of Lawyers for Children so impressively stated in its 'Response
to the LSC Consultation on Family Legal Aid Funding from 2010'.[121]
Suffice it to say that, from the point of the view of the judiciary,
it is essential that the services of a pool of experienced advocates
in both public and private law proceedings remain available to
the judiciary. It is, of course, one of the key assumptions upon
which the PLO is based and which the Ministry of Justice effectively
indorsed in assisting and promoting its introduction. Furthermore,
it is the feature which, together with more robust case management
by judges, is beginning to achieve improved performance in reducing
the length and complexity of the care cases to which it has been
applied since its national launch in April 2008.
Similarly, in Private Law cases, the legal profession,
(both solicitors and barristers) play an essential role in achieving
and promoting justice and in particular in securing settlement
without the need for final hearings in Private Law Cases. Courts
are throughout the country experiencing the increased difficulties,
delays and frequent absence of co-operation which are inevitable
in cases conducted by litigants in person and substantially extend
their length. To the extent that the number of LiPs is bound to
become swelled if they are unable to obtain solicitors ready and
sufficiently skilled to act for them under the Legal Aid scheme
for which many of them are eligible, these problems will multiply.
It is no function of mine as Head of Family Justice,
to participate in negotiations between government and the professions
as to the terms of their remuneration. However, it emphatically
is my concern as Head of Family Justice to bring forcibly to the
attention of the government the threat to the efficient working
of the system in terms of both efficiency and delay if the LSC
proceeds regardless of the warnings of the profession and, in
particular if those specialising in children cases abandon or
cherry pick publicly funded work. Quite apart from the strain
upon family judges and the courts' administration by HMCS, there
will be significant further delays in the court process caused
by inexperienced advocates undertaking more complex work; longer
and less focussed hearings; a higher incidence of litigants in
person and a greater likelihood of appeals where cases become
derailed because of inadequate representation at first instance.
The judiciary have been invited to comment on the
various consultation papers issued by the LSC. I have urged in
response the clear view of the judiciary that representations
by the professions as to the effect of the proposals and the willingness
of solicitors and barristers to undertake the work if they are
implemented should be taken seriously. I have warned the LSC that
the family judiciary is in no doubt that: individual solicitors
and solicitors firms of quality and experience are already abandoning
publicly funded family work, and the rate of this process will
increase if the proposals are carried into effect; many members
of the Bar have already either cut down on or abandoned publicly
funded work in favour of privately paying work, and this too is
likely to increase; members of the Bar who can command privately
paying work tend to be the more experienced, and their loss to
this area of work will reduce a valuable pool of expertise.; the
less experienced and competent the representative, whether barrister
or solicitor, the less efficiently is the case managed; lack of
representation will lead to more and more litigants appearing
in person with the effects I have described and loss of experienced
and committed advocates will undermine the Public Law Outline,
which as I have emphasised is dependent on the cooperation and
expertise of the dedicated specialist lawyers who will operate
it.
I feel bound to observe that there is a discouraging
lack of realism in the apparent determination of the LSC to disregard
these warnings. Since the time of Lord Carter's Review[122]
the LSC has ignored his recommendation that in children cases
a graduated fee scheme was necessary in the light of the difference
in complexity of the infinite variety of such cases[123]
and it has pressed ahead with its intention to propose a fixed
fee scheme which, in parallel with Lord Carter's Review, the LSC
had itself been devising internally to deal with the question
of the mounting costs of the Legal Aid scheme. While it withdrew
that scheme in the face of almost unanimous criticism, the LSC
has never shifted from a mind set that the organisation nature
and levels of work within firms of family solicitors and the potential
for the expansion and/or rationalisation of the work of such firms
to achieve economies of scale were essentially similar to those
in the criminal law field, which was both the original and principal
area of investigation by Lord Carter, responsible as it was for
the vast proportion of the Legal Aid budget. That approach appears
to have governed their thinking ever since. In particular, there
is a persistent refusal to recognise that the nature of the work
and the needs of the parties are wholly different.
Yet, Family law work (particularly in care proceedings)
demands far higher levels of attention and attendance from qualified
practitioners rather than paralegals, and is simply not amenable
to rationalisation of the market and reorganisation of family
solicitors firms in such a manner as to justify a system of low
level fixed fees payable across the board of representation on
a crudely averaged basis. Such a scheme presents intractable problems
in the organisation of family work nationwide if it is to be properly
done and it conjures up the spectre of advice and representation
"deserts" developing across the country, as already
exist in one or two cases.
Thus, while the judiciary have not considered it
appropriate to enter into the detail of the fee scheme proposed
by the LSC, they have felt able both as informed observers and
affected parties, to comment that the inflexible fixed fee scheme
proposed appears to be "too flat", rewarding as it does
the simple short case at the same level as the long and complex
case leading to the result perceived by the judiciary as inevitable,
that solicitors will fight shy of taking on the complex cases
(which are precisely the cases where the judiciary most need their
assistance) and in the most difficult cases advocates will be
forced to skimp on preparation. Firms will inevitably take those
cases which offer the greatest reward for the smallest amount
of work conducted over the shortage possible period, thus allowing
them to move onto the next simple case.
So far as advocates are concerned, the proposal which
most concerns the judiciary is the proposal that the fixed fee
for interim hearings will be paid at a lower rate than for final
hearings. This fails to reflect the reality of what is frequently
involved. The PLO, the Adoption and Children Act 2002, and fact
finding hearings in domestic violence cases all require advocates
and solicitors to prepare the case early and fully. In residence
and contact cases, fact finding hearings are frequently longer
and more complex than final hearings and their outcome is often
determinative, or near determinative, of the final hearing. That
is their principal purpose. To pay a single fixed fee for all
interim hearings is bound to have a chilling effect on the readiness
of advocates to take on Private Law cases. The judiciary therefore
anxiously awaits the outcome of the current extended negotiations
with the LSC by both sides of the profession as a crucial factor
in the future course and pace of proceedings.
I now turn very briefly to the third element of the
system which, in circumstances of restricted funding, acts as
a major cause of delay in the disposal of family cases, namely
the shortage of judges and judge days available to try the increasing
number and complexity of the cases within the system. These in
turn are the product of resource restrictions in HMCS in which
the head count is currently being reduced.
Again, this Lecture is not the place for a detailed
consideration of those problems. Suffice it to say that High Court
judges have an increasing workload, not only in relation to the
heaviest care cases, but as a result of developments in other
areas of family law than children, including new jurisdiction
in their capacity as judges of the Court of Protection, under
the Forced Marriage Act,[124]
and in the steadily increasing number of Hague jurisdiction cases.
Because High Court judges are only deployed in the most serious
and complex of care proceedings, the burden of care work on County
Court judges is increasing, thanks to the process of cascading
down cases to the lowest tier of the judiciary appropriate to
try them and the Public Law "surge". The capacity of
the magistrates in the FPCs to handle this load is confined to
the less complex cases and is hampered by a shortage of qualified
legal advisers.
The District Judges, on whom the burden increasingly
falls, and who handle the vast bulk of the Private Law work done
in the County Court, are not only having to deal with expanded
family lists but are also faced with expanded lists in other areas
of the jurisdiction, such as civil disputes and bankruptcy. This
creates great difficulties in "blocking off" successive
days of their time to deal with care cases. No increase in judicial
numbers is contemplated and the deployment of deputies and recorders
as part time judiciary is diminishing, again for resource reasons.
So far as I am aware, no increase in the HMCS budget will be available
to ease the situation, despite the steady expansion in work.
There is, of course, no overnight solution to these
problems, which are a product of our fractured and multi-faceted
society and an increasing incidence of marital and partnership
breakdown. The most promising way forward to ease the overall
burden of delay and costs is to nip private law children disputes
in the bud by early intervention. The "low level judicial
intervention to encourage parents to resolve problems themselves"
referred to in the Fundamental Legal Aid Review has already been
provided by the expansion and application of the FHDR scheme under
the Private Law programme which has, as already noted, been a
lifebelt to the system. But, when early agreement cannot be reached
(i.e. at or shortly after the first hearing) the solution must
be for the judge, wherever feasible, to require the parties to
mediate under the variety of schemes now available.
I have long been a proponent of compulsory reference
to mediation against the conventional wisdom that parties cannot
be obliged to agree. The Government has never accepted this. Happily,
however, the LSC has been persuaded to fund both parties in schemes
being trialled in Birmingham, Milton Keynes, Plymouth, Reading
and Sheffield, in the expectation that the initial costs of mediation
will yield a dividend of "cracked" cases at an overall
saving to the system in terms of costs and delay. Nonetheless,
the high number of care proceedings and a hard core of uncracked
private law cases are bound to remain in the system.
At the outset in this lecture, I highlighted the
observations of Lord Laming in two respects. The first was the
quotation that children are our future; that really needs no emphasis
from me. It unites all who care about family justice and the importance
of children, both as individuals and as the next generation of
a society bedevilled by family breakdown. As individuals, it is
their right and, as the future generation, it is in society's
interests that they should be protected.
Second, Lord Laming emphasised the role played by
the courts in the overall process of safeguarding children in
public law proceedings and the recognition of the damage caused
to them by delays in the progress of cases through the court system.
The same logic applies and, as is increasingly well known, the
same kind of damage occurs to children who are the subject of
extended and unresolved disputes between warring parents engaged
in battles over contact and residence. It is unrealistic to think
that, in the current economic difficulties, the family justice
system can escape the scrutiny of government, and, as one so often
hears, "hard choices have to be made". However, unless
realistic steps are taken, and, sufficient funding made available
to sustain its key elements, the road ahead will be inevitably
marked by increasing delays in the disposal of cases, whatever
targets may be set for improvement.
107 The Protection of Children in England: A Progress
Report (March 2009) Back
108
The Public Law Outline: Guide to Case Management in Public Law
Proceedings (April 2008) Back
109
Recommendation 55 Back
110
See paragraph 8.8 of the Report. Back
111
The Protection of Children in England: action plan. The Government's
response to Lord Laming (May 2009). Back
112
Children and Young Persons Act 1969 and Child Care Act 1980. Back
113
Review of Child Care Law: Report to Ministers of an Interdepartmental
Working Party (HMSO 1985) Back
114
Re S (minors) (care order: implementation of care plan) [2002}
2 AC 291 Back
115
See: Review of Child Care Law: paras 2.22 - 2.26. Re, S per
Lord Nicholls at para 28. Back
116
Yousef v Netherlands [2003] 1 FLR 210, ECHR. Back
117
DCA "A Fairer Deal for Legal Aid",Cm 6993 (2005) Back
118
DCA Review of the Child Care Proceedings System in England
and Wales (2006) Back
119
Ministry of Justice the Public Law Outline: Guides to Case Management
in Public Law Proceedings (April 2008) Back
120
S. 12 Criminal Justice and Court Services Act 2000 Back
121
http://www.alc.org.uk/docs/LSC_Fees_Consultation_ALC_final.doc Back
122
Lord Carter's Review into Legal Aid Procurement published 13 July
2006 Back
123
See paragraph 160 onwards Back
124
Forced marriage (Civil Protection Act ) 2007 Back
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