House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

3 The Family Justice Review Interim Report

Background

28. The Family Justice Review started work in March 2010. It was jointly sponsored by the Ministry of Justice, the then Department for Children, Schools and Families, and the Welsh Assembly. The terms of reference for the review included a list of "guiding principles" (including the paramountcy of the interests of the child, protecting the vulnerable, minimising conflict, and promoting the positive involvement of both parents). The Panel was asked to assess how the current system performed against these principles, and to make recommendations for reform in two key areas: "the promotion of informed settlement and agreement" and "the management of the family justice system". The terms of reference said that "recommendations should be costed and have regard to affordability".[44] The review was conducted by a Panel chaired by Sir David Norgrove (former chair of the Pensions Regulator), consisting of independent members and representatives from the three sponsoring bodies. The Panel published its Interim Report on 31 March 2011.

THE REVIEW'S APPROACH AND ITS INTERIM CONCLUSIONS

29. The majority of the written and oral evidence we received was submitted before the Interim Report was published, and much of that evidence addressed issues which are the subject of recommendations in the Interim Report. We shall consider relevant recommendations in the Interim Report in each chapter alongside our own findings. However, it would be helpful to discuss some of its principal conclusions here.

30. The Interim Report concluded that the current family justice "system is not working".[45] It said that it had identified "much the same problems" as the previous seven reviews of family justice carried out since 1989 and concluded that "the chief explanation in our view is that family justice does not operate as a coherent managed system, in fact, in many ways it is not a system at all".[46] The Interim Report concluded that the family justice system required radical structural change. It recommended setting up a Family Justice Service "subsuming" the work of the Family Justice Council, Local Family Justice Councils, Family Court Business Committees, the National Performance Partnership, Local Performance Improvement Groups and the President's Combined Development Board. It would also include Cafcass but not Cafcass Cymru, which is and will remain a matter for the devolved administration.[47]

31. Many of the issues which led to the Panel's proposal for structural change have also been brought to our attention during our inquiry. The failure of the system to ensure that the voice of the child is heard, the lack of trust between agencies, the low morale of many staff and the complexity of the system for all concerned have all been the subject of concern and criticism by many of our witnesses. There are also questions about the current system's ability to cope with future challenges. Change to the legal aid system will produce more litigants in person, and the number of public law cases seems unlikely to fall. It is clear that reform is needed. However, during our inquiry we have focused on discrete areas of the family justice system rather than the intricacies of the current structure.

THE FOCUS OF THE INTERIM REPORT

32. The Interim Report has a clear focus on the welfare of the child, which we welcome. We also welcome its concentration on the damaging effects of delay on children. We have sought to use the same approach in this Report.

33. However, we regret the lack of analysis of the challenges that will be presented now that the Government has decided to proceed with its proposed changes to legal aid. The Government's Proposals for the Reform of Legal Aid in England and Wales were published in November 2010 and its response to the subsequent consultation on 21 June 2011. The Government intends to remove aid for help and representation in private law cases where there are no domestic violence or safeguarding concerns. Most people who previously would have been eligible for legal aid will, in future, be expected to rely on mediation. We discuss the likely impact of this in Chapters 5 and 7. Referring to the likely increase in the number of litigants in person expected to result from the removal of legal aid in many circumstances, the Interim Report noted that:

We share [the concerns of respondents], both as to the ability of litigants in person to conduct their case effectively and as to the inevitable increased burden in terms of time and resources this will place on the court. We are also concerned that some parents will simply not pursue their dispute leading to some children losing contact with a parent.[48]

34. The Interim Report does not comment explicitly on whether the current family justice system would be able to cope with the "increased burden", or what measures would be necessary to mitigate such a burden. The Interim Report concludes that: "our recommendation that the legal aid budget be managed as part of the overall family justice budget, would enable the Family Justice Service to take a more holistic approach to ensuring there are available services to support these families".[49] We did not take evidence on this recommendation, but it would be a longer term solution which could only take effect once the Family Justice Service was up and running. Any changes to the eligibility or scope of legal aid would require legislation, so we are not clear to what extent the proposed Family Justice Service could "shift money between activities" as the Interim Report suggests.[50]

35. We welcome the work of Sir David Norgrove and the Family Justice Panel. While the need for reform of the family justice system is clear, the evidence that we have heard on the most appropriate structure for the family justice system is limited. We therefore remain neutral as to the Panel's detailed proposals on the creation of a Family Justice Service, while taking a close interest in responses to the consultation.

36. We welcome the focus of the Interim Report on the needs of the child. However, we are disappointed that the Interim Report did not look in more detail at how the family courts might cope with an increase in the number of litigants in person resulting from the Government's proposed changes to legal aid. We hope that the Panel can address this issue in more detail in its final report.

COSTS

37. We have noted above the paucity of data available regarding the family courts. The Panel found this was particularly true with regard to cost: the Interim Report contains virtually no information on the likely costs of its recommendations, noting that it was not possible to cost its proposals in the absence of information about the current system. It concludes that: "we believe that by removing duplication, refocusing the court's attention and encouraging other methods of dispute resolution costs will be reduced."[51]

38. The Minister, Jonathan Djanogly MP, Parliamentary Under-Secretary of State, Ministry of Justice, told us that the Government was seeking to address this:

The Review team themselves have identified a whole series of gaps in the statistics that they need to find out before they can put in costs. The costs that appear in the Initial Report are actually very high level [...] MoJ and DfE will do our best to help them in identifying those costs so that we can benefit from that information at the time of the Final Report.[52]

Would the proposals be cost neutral?

39. Tim Loughton MP, Parliamentary Under-Secretary of State, Department for Education, argued that many of the changes proposed in the Interim Report would be cost neutral, and that there were potential savings to be made:

Sir Nicholas Wall and the senior judges that you had in front of you said that a lot more could be done with the existing funding that is there, recognising that there is not going to be, on the face of it, a lot of extra funding coming in. The duplication to which the Report refers is a major source of cost. The bureaucracy around a lot of the proceedings and the lack of trust between various different agencies involved in the court procedures, such as the duplication of expert reports and everything else, is bringing about costs now which need not be there.[53]

40. The Interim Report identified the following areas where it says there is duplication of work: both the courts and local authorities examining applications for adoption (where it recommends that local authorities stop carrying out this work); the work of guardians[54] duplicating that of local authorities (where it recommends both continue, so there would be no saving); and duplication where both Independent Reviewing Officers (IROs) and guardians examine care plans (where it recommends IROs should have sole responsibility). Thus the Report identifies only three areas, and in none of them would ending that duplication lead to savings for the MoJ (guardians are supplied by Cafcass, part of the Department for Education, discussed further in Chapter 6).

41. The Interim Report also noted that judges had been using expert witnesses to repeat the work of local authorities and guardians, which had resulted in a "disincentive to the authority to do the work fully in the first place". It also concluded that courts instruct too many expert witnesses. However, it is worth noting that the entire expert witness legal aid budget was estimated at about £53 million in 2008-09[55] so any reduction in the use of expert witnesses would result in a relatively small potential saving in a system the Interim Report estimates costs £1.5 billion a year.

42. One of the Interim Report's recommendations is that the Family Justice Service should be responsible for an integrated IT system able to support case management with "much better IT capability". Like the other recommendations, this was uncosted. However, both Ministers agreed they were apprehensive about the potential cost of such an IT system.[56] Mr Loughton said that:

The history of central Government-initiated IT projects is not one that makes one jump up and down with joy, of course [...].We will need to look at that very carefully. It does strike us that the admin procedures of Cafcass are slightly behind time and we need to get up to speed with it. IT is going to be part of that solution, I am sure.[57]

43. Governments, both in the UK and internationally, have an extremely poor record for procuring effective IT systems on time and on budget.[58] Experience suggests that the Panel's recommendation for the development of an integrated IT system with the ability to support the management of cases may prove to be particularly challenging to implement without extensive further resources.[59] The Ministry of Justice's track record on IT is also poor. After the merger of the Prison and Probation Service to form the National Offender Management Service a new database, C-NOMIS, was planned. After costs tripled to £690 million it was reconfigured to just include prisons.[60] Cafcass alone currently spends £7.78 million a year on outsourced IT. While we welcome the Panel's indication that reform will result in a cheaper family justice system overall, experience suggests that radical structural reform rarely supplies savings, or even cost-neutrality in the short-term. In this context, we note that the Australian Government made around £260 million available for the far-reaching structural and legislative reforms it carried out to its family justice system in 2006.[61]

44. We agree with Ministers that there are potential savings from implementing the proposals in the Interim Report. We are concerned that the Family Justice Review has been unable to cost its proposals and we look to Ministers to ensure the Review has all the information it needs fully to inform its final report.

Government's response to the Interim Report

45. The consultation on the Interim Report closed on 23 June. The Family Justice Review hopes to publish a final report in the Autumn, to which the Government intends to respond before the end of 2011.[62] The Minister stressed that the Government was not just waiting for the final report: "given the state of the system as it exists and the urgent needs of children waiting for court cases, we felt that we had to act".[63] He set out the measures that the Government had already taken including: 4,000 extra county court hearing days; quarterly meetings between the MoJ, the Department for Education, and the judiciary; and setting up 42 local performance improvement groups bringing together local authority representatives, local judges, HMCTS, Cafcass, and the Legal Services Commission.[64] On 21 June 2011, the Government presented its Legal Aid, Sentencing and Punishment of Offenders Bill, which incorporates those aspects of its legal aid reforms which require legislative changes.

46. Undertaking changes to legal aid and implementing the recommendations of the Family Justice Review at the same time will be difficult. The Department must look carefully at the interactions between the two sets of proposals, and the cumulative impact on the different elements of the family justice system. The Department must monitor the situation carefully and intervene quickly if problems emerge. The Committee will return to this matter in the light of early experience of the legal aid changes.

44 Interim Report, Annex A, p 190 Back

45 Ibid, p 5 Back

46 Ibid, p 6 Back

47 Ibid, p 25 Back

48 Interim Report, p 155 Back

49 Ibid. Back

50 Interim Report, p 68 Back

51 Interim Report, p 25. http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-interim-rep.pdf Back

52 Q 295 Back

53 Ibid. Back

54 The term guardian technically only applies to cases where the child is a party to proceedings, in all public law cases, and some private law cases. However, many of our witnesses used the term generically to refer to Cafcass workers in all cases. In this report we have used the term 'Cafcass worker' unless we mean guardian in the more narrow technical sense, or where we are paraphrasing or commenting on evidence which used the term guardian. Back

55 The Impact Assessment for the Government's proposals for the reform of legal aid in England and Wales states that the exact figure spent on expert witnesses is not known, but it is estimated to be 2/3 of the £80 million spend on disbursements. Disbursements are costs arising from proceedings in addition to legal costs, they include photocopying, travel costs, out of pocket expenses and expert witness fees. Back