House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

7 Courts

Case management

208. Case management refers to the approach taken by the judiciary to progressing cases. A well-managed case will be resolved with the fewest possible hearings consistent with justice. The judiciary have not, in the past, viewed themselves, as case managers. Sir Nicholas Wall, President of the Family Division, told us that the need for case management in the family courts had necessitated a culture change: "historically, the English judge has seen him or herself as the arbiter who sits back and waits, decides the issue and then goes away. In family law that has completely changed. We are now case managers and we are in charge. We have a quasi-investigative inquisitorial role."[248] Mrs Justice Pauffley, a High Court judge specialising in family law, agreed: "It is the judge's job to case-manage proactively right from the off and to try to ensure that the case is dealt with in the most expedient way possible."[249]

209. Case management powers are contained in Part 4 of the Family Procedure Rules 2010. The process by which case management is carried out, however, varies between courts. Sir Nicholas identified this as a problem, telling us: "In some places where you have a very proactive designated family judge...you will find that cases go through speedily. In other cases...because of the number of players in the system and the need to fulfil article 6—which is an important factor in the equation—cases do slip."[250] Evidence that different courts conclude similar cases in different timeframes is subject to the concerns over the quality of the data we have noted elsewhere; however, a recent Ministry of Justice study on reducing delay suggested that some courts were completing care and supervision cases up to five months quicker than the national average.[251]

210. We heard evidence of multiple problems with case management, including judicial continuity, poor identification of issues at the beginning of a case, excessive use of expert evidence, the failure of parties to file statements or evidence as directed, and consequent repeated adjournments because cases were not ready for determination. On judicial continuity, Craig Pickering of Families Need Fathers told us "we've got members who've had nine or 10 judges in the course of several years".[252] One of the elements within effective case management is judicial continuity. Sir Nicholas agreed there was a problem:

What tends to happen, particularly amongst the circuit judiciary, is that they sit in crime, civil and family, and often the case has to wait for a judge rather than the judge going to do the case when the case is ready. One of the things we are very keen to address is judicial continuity and management of cases, which means that the judge can hear the case when the case is ready to be heard rather than the case having to wait for the judge.[253]

211. Judicial continuity not only allows for effective case management and efficient use of judicial time but is also an important signal to parties, above all children, that their case is being treated with the respect it deserves. We welcome the President of the Family Division's recognition of this issue, and willingness to reconsider the current approach to assigning the judiciary to cases. Further, we welcome the senior judiciary's commitment to improving case management in the family courts more generally.

212. In evidence to us, the judiciary themselves identified similar problems with case management to those that we had heard complaints about from other witnesses. Mrs Justice Pauffley told us: "There is sometimes an insufficient focus on issues so that cases are given too long a time estimate" and

The wait for reports [...] sometimes causes more delay than any of us would want, but then it is for the judge, I would say, to reject an expert's time frame that is outside the child's time frame. The case has to be brought within something that is acceptable from the perspective of everyone. Sometimes cases are listed with a fact-finding that is perhaps unnecessary, so it is for the robust judge to case-manage that litigation so that the fact-finding is dispensed with and you get on with the process of deciding the child's future.[254]

Mr Justice Ryder, who was the author of the Public Law Outline (PLO), identified further issues with case management and the challenges posed by changes in family law:

a fairly well demonstrated increase in complexity, for example, caused by international cases, multiple interpretation being required and new problems. Children in asylum circumstances present assessors and courts with quite interesting and diverse problems...the delay caused by sometimes too many experts, but certainly lack of expert availability, and also the lack of appropriate assessments at the time when we need them. They take too long and they are not always of the quality that one would want the first time round. That causes a delay...[and] poor issue analysis...You need both the advocates and the judge to get together with one mindset, which is to problem-solve a case, not to allow it to become over-sophisticated [...][255]

213. It was clear from the recommendations of the Family Justice Panel and the evidence we heard from the judiciary that there is broad agreement as to the way forward, both with case management and the wider challenges posed by a multi-party and resource-stretched system where decisions are intrinsically time-sensitive. The Panel recommended that the judiciary working for the new Family Justice Service must have a greater focus on leadership.[256] Mr Justice Ryder (from whom we heard evidence before the publication of the Family Justice Panel Interim Report) told us:

you need a local understanding which is very strong, with local leadership of the family justice system which is strong. Your designated family judge, your Family Division liaison judge, is key to making this work. You have to have, and should have, business committees with each of the agencies represented on them where they discuss just the problems that you are identifying.[257]

214. The Minister told us that:

One of the immediate problems that we saw when we came into Government was the lack of joined-up thinking between Departments and, indeed, with the judiciary. We have immediately acted to rectify that. At the highest level, we now hold quarterly meetings between myself, Mr Loughton and Sir Nicholas Wall, President of the Family Division. Those have proved to be very helpful and hopefully are providing a degree of leadership at the highest level that did not exist previously.[258]

215. The Family Justice Panel also recommended: "Judges with leadership responsibilities should have clearer management responsibilities. There should be stronger job descriptions, detailing clear expectations of management responsibilities and inter-agency working."[259] Mr Justice Ryder explained stronger performance management and multi-agency communication had recently been introduced to ask the questions crucial to reducing delay:

recently, we have had local performance implementation groups and a national performance body as well, with the object of saying, "Look, is listing working in your area? Is local authority assessment process working in your area? Have we a shortage of guardians? Are they taking too long? Are we using too many experts? Are the police co-operating?" You put together each of the agencies in an interdisciplinary environment. It has to be a public, transparent environment where people can actually hear what the arguments are for and against improvements.[260]

216. He noted, however, that some areas were working better than others:

in areas where you do not have that interdisciplinary co-operation, which can be for all sorts of local strategic reasons—quite often funding but not necessarily so; it may be lack of leadership in one or more of those organisations—the designated judge and the liaison judge will find difficulty trying to get the improvement that you will see elsewhere. That should not stop them trying.[261]

217. Earlier attempts to tackle case management problems and inter-agency working provide evidence of how reform can work but must be applied consistently across the system. Introduced in 2008, the PLO[262] was a key reform arising from the 2006 Review of the Child Care Proceedings System in England and Wales, issued jointly by the Department for Constitutional Affairs (now the MoJ), the Department for Education and Skills (now the Department for Education) and the Welsh Assembly Government. The PLO introduced a more streamlined process intended to minimise unnecessary delay, with greater emphasis on case management and preparation by advocates. The timetable for each case would be focused around the needs of the individual child involved. The PLO sought to shift the balance in public law cases from an emphasis on a specific target time for completion of cases, to a more flexible requirement for cases to proceed at a speed appropriate to meet the needs of the individual child, known as the 'Timetable for the Child' whilst maintaining the overall objective of completing cases within 40 weeks.[263] Mr Justice Ryder, one of the authors of the PLO, told us that the PLO had "has fundamentally changed the landscape because we are talking about a problem-solving culture under the PLO which was not the level playing field, the judge referee system, that we case-managed cases with before."[264]

218. In 2009, the MoJ commissioned an early evaluation of the PLO. This concluded that, when implemented appropriately to the needs of the case, the PLO provides a clear structure for care and supervision cases. However, it also found that there was inconsistency in compliance with the PLO requirements.[265] This was reflected in a recent study by our specialist advisor, Professor Judith Masson, and Julia Pearce, which found little evidence of case management in compliance with the PLO in three of the four areas they studied.[266]

219. Poor compliance with the PLO creates more work for other parties in the family justice system. In November 2010, the Committee of Public Accounts found that the issue of sub-standard work by local authorities in care proceedings leading directly to an increase in the workload for Cafcass, which we noted above, is a result of not adhering to the PLO:

The quality of assessments on care cases by local authority social workers varies. Poor quality assessments place an additional burden on Cafcass as the courts must request a new assessment from Cafcass family court advisers if they cannot rely on the work of local authority social workers. The Department should work with local authorities to ensure that they are fulfilling their responsibility under the Public Law Outline to undertake appropriate pre-action work with the family, and to produce good assessments so that cases can proceed without requiring extra interventions or investigations by Cafcass.[267]

Litigants in person

220. Aside from a small 2005 study carried out by Professor Richard Moorhead for the then Department of Constitutional Affairs, there is very little evidence on either the impact of litigants in person appearing in the court system, the experience of such litigants or the number of people who currently represent themselves. The Minster told us that while the Ministry of Justice believed the number of unrepresented litigants in the family courts was "significant", the Department did not know how many there were.[268] We can only repeat what we have said elsewhere, in this Report and during other inquiries, that without robust data evidence-based policy making becomes impossible, and the potential for unintentional consequences arising from reform increases exponentially.

NUMBERS

221. During the course of our inquiry into the operation of the family courts, the Government consulted on proposals to end legal aid for most family law cases, except those where there was evidence of domestic violence, or where mediation was to be facilitated. The Ministry of Justice estimates that at least 210,000 people pursuing cases in the family courts will no longer be eligible for legal aid.[269] The Government believes that removal of legal aid will force more litigants into alternative dispute resolution. The Minister, Jonathan Djanogly MP, told us that, while the MoJ agreed that there would be an increase in the number of litigants in person in the courts: "Given that we think the overall numbers [of litigants] going to court will reduce, we do not see the additional pressures on the court being significant."[270]

222. During our legal aid inquiry Sir Nicholas Wall told us: "if public funding is removed from private law applications...then there will be a massive increase in litigants in person. If you want maintenance or to be maintained, or you want to have contact with or look after your children, you are not going to be prevented from doing so by an absence of public funding." When he appeared before us in this inquiry, the President told us he in fact feared an increase in the numbers of private law applications: "Unlike other areas of the law, people will not give up simply because they do not have public funding. There are other areas of the law such as immigration and so on where, no doubt, swathes of work may be cut out because there is no public funding. But, in family work, there is no doubt at all that...there will not be a diminution; there will be an increase, if anything, in the people who litigate."[271] Sir Nicholas told us that, without legal advice on the strength of their case at an early stage, parents would simply refuse to compromise outside court.

223. The Family Justice Panel agreed that "greater numbers of people" would be representing themselves in the family justice system. It also noted that implementing a policy which sought to put parents off from pursuing a dispute meant that some children, who would otherwise enjoy a relationship with their parent would simply lose contact.[272]

224. The removal of legal aid from applicants in most private family law cases will increase the number of litigants in person in the family courts. It is self-evident that parents are unlikely to give up applications for contact, residence or maintenance for their children simply because they have no access to public funding. We are concerned that the Ministry of Justice does not appear to have appreciated that this is the inevitable outcome of the legal aid reforms.

IMPACT

225. Mr Djanogly also told us: "We do not necessarily see there being an increase in time taken in all types of case because of an increase in the litigants in person. The evidence actually shows that, in some types of case, having litigants in person on both sides may reduce the time taken in court. We cannot take these things for granted."[273] We asked the Ministry of Justice for the evidence to which the Minister referred. The Department supplied us with a copy of a written parliamentary answer showing the average time taken for family proceedings:[274]

Average duration of cases completed in county courts or the High Court in England and Wales between 1 April 2009 and 31 March 2010, by legal representation

Divorce Public law Private law

Legal representative Mean duration (weeks) Number of decrees absolute Mean duration (weeks) Number of orders Mean duration (weeks) Number of orders

Both applicant and respondent 55.7 40,088 54.5 680 37.8 23,738

Applicant only 44.6 44,904 36.5 46 27.9 9,280

Respondent only 59.7 2,707 56.2 2,575 44.7 3,573

Neither applicant nor respondent 34.1 28,796 34.1 81 38.6 2,710

Notes:
Figures are given where the applicant/respondent's representative has been recorded or left blank. Therefore, it should be noted that parties without a recorded representative are not necessarily litigants in person.
Divorce:
1. Figures include dissolutions of marriage or civil partnership and annulments of marriage or civil partnership.
2. The duration is calculated from the earliest recorded petition date to the earliest recorded decree absolute date.
3. Figures exclude cases where there is no record of a petition and cases where the decree absolute date is before the petition
4. Time from petition to decree absolute may be affected by the time it takes the applicant to apply for the decree absolute once the decree nisi (first order) has been issued. In normal circumstances the applicant may apply for the decree absolute six weeks after the decree nisi has been issued, but (s)he may choose to wait longer than this.
5. The mean is the total of all of the durations, divided by the number of decrees absolute.

Public and Private Law:
1. Private law refers to cases brought under the Children Act 1989 where two or more individuals, usually separated parents, are trying to resolve a private dispute about their child(ren). Public law refers to child welfare cases where a local authority, or other authorised person, is stepping in to protect a child from harm or neglect.
2. Private law includes cases where a section 8 order (contact, residence, prohibited steps, specific issue) was made or where a parental responsibility order was made. Public law includes cases where a care order or a supervision order was made. This does not necessarily mean that these were the orders applied for.
3. The durations in both case types are calculated from the earliest application date (or the date the case was transferred in to the court if that is earlier) to the date of the order event.
4. A case is defined as applicant represented if at least one applicant in the case has a recorded representative. Similarly with respondents.
5. The mean is the total of all of the durations, divided by the number of orders.

Source: HMCS FamilyMan system

226. A true picture of the impact on the courts of unrepresented litigants only appears when cases involving "active" parties are considered. Cases where a party either does not appear or does not oppose the application, for example an uncontested divorce, unsurprisingly take less time. Family cases involving unrepresented parties who take an active part in proceedings took longer, parties being less likely to settle.[275]

227. In addition to our grave concerns over the quality of the data on which the Ministry of Justice relies, the assertion that cases may take a shorter time when parties are unrepresented conflicts with all the other evidence we have heard about the experience of all parties in cases involving a litigant in person. The consensus was that litigants in person create delays, in some cases simply through lack of experience and awareness of procedure, and in others due to mental health, literacy and substance abuse problems. Sir Nicholas Wall told us:

my experience of people who are not represented by lawyers is that they come in all shapes and sizes. Obviously some of them are very good; some of them are very nervous; some of them are very upset; and some of them are disturbed. But they do undoubtedly slow the system down.[276]

228. When we put the Ministry of Justice's assertion that cases in which a litigant in person appears may actually take less time to Mr Justice Ryder, a High Court judge specialising in family law, he told us "I cannot think of a single case where that would be correct in the time that I have been sitting."[277] He also pointed out that a high number of cases that get to court are settled at the first hearing:

at this first appointment in private law about 70% of all cases—it varies across the country—are conciliated by the district judge or, in those areas where the family proceedings court does this, by the legal adviser with or without the magistrates. That is an extraordinary percentage of cases that don't fight in a traditional way through the courts. If we are then going to remove legal aid from those cases that need some legal assistance, the inevitable effect is going to be significant upon the judges.[278]

229. Mrs Justice Pauffley described the difficulties the judiciary face in conducting hearings involving a litigant in person effectively and efficiently:

It is extraordinarily difficult to manage a litigant in person. We all have a duty to listen to the arguments that they present. It would be rude and offensive, and, frankly, one might say, a denial of justice, to say, "I'm not interested in this; move on." There is only a limited amount of that in our armoury. In most cases a litigant in person will add enormously to the length of time a case will take, not least because most of them will want to litigate every last little issue.[279]

230. The judiciary's evidence that litigants in person cause delays in the family courts received support from other witnesses. Fiona Weir of Gingerbread told us "litigants in person are often one of the main causes of delays within the court system because the fact that they don't understand what is going on leads to a lot of delays."[280] The National Association of Child Contact Centres observed: "Timetables set out to aid the parties are rarely complied with [when litigants represent themselves] and LIPs lack the detachment and experience to drop untenable, weak or irrelevant arguments and to accept unpalatable decisions rather than pursuing doomed appeals leading to delay, increased costs and frustration for the represented party as well as the judge which may of itself hinder compromise."[281] Stephen Cobb, of the Family Law Bar Association, responding to the charge that lawyers could be expected to say that litigants in person caused delays in the system, said:

Professor Richard Moorhead's 2005 research for the then Department for Constitutional Affairs concluded that the working of the family court was significantly impaired by the involvement of litigants in person in the courts. So it is not the Family Bar that is saying this: it is Professor Richard Moorhead and...probably anyone you ask who works in the family courts.[282]

231. The Family Justice Panel agreed that litigants in person cause delays in the system "We share these concerns, 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."

232. Catherine Lee, Director of Access to Justice at the Ministry of Justice, told us:

we did promise in the Legal Aid Reform consultation paper that we would be doing a post-implementation review specifically to look at the impact of litigants in person. We will be doing that. It will be a question of looking at the backlog, looking at the actual length of cases taken involving litigants in person and seeing whether there is a connection. As the Minister said, the evidence so far is not clear cut on the subject.[283]

233. When we repeated the Minister's evidence that cases with unrepresented litigants could take a shorter time to the President of the Family Division he issued an invitation: "I think he ought to come and sit with one of my colleagues or myself for a day with a litigant in person and then he might not give that evidence."[284]

EXPERIENCE

234. Procedures and terminology in the family courts do not vary depending on whether a person is represented or not. As we heard from the judiciary and others, this is one of the factors that create delays when one or both parties are litigants in person. It also means the experience of court for many litigants in person is highly stressful. Fiona Weir, CEO of single parents' charity Gingerbread, told us a survey conducted by her organisation found that 78% of litigants in person found it "either difficult or very difficult to represent themselves in the court system."[285] The National Youth Advocacy Service told us that the experience of litigants in person led to a diminution in their confidence in the family justice system:

The lack of understanding of court processes and the lack of legal advice results in unrealistic expectations of children's representatives, and protracted proceedings. This further increases delay and cost to public purse. This causes a lack of confidence in the system on the part of litigants, and has contributed to public and misguided campaigning, of which NYAS has direct experience. Children involved in the proceedings experience further trauma and uncertainty.[286]

235. We heard evidence about the experience of court for litigants in general, which we believe is applicable to the experience of litigants in person. Nicola Harwin, of Women's Aid, a charity supporting victims of domestic violence, told us that many of those using Women's Aid's services:

feel very intimidated by the process of going to court and they don't really understand what's going on. They often feel very isolated...people feel that there's a pressure to agree. Indeed Lord Justice Wall said, as one of his conclusions from looking at the 29 Homicides report, that it was very important that people were able to give their consent freely and without pressure. I don't think it's very easy to do that. There's also the particular problem of having separate waiting rooms. Despite there being recommendations about this a number of years ago, there are still many courts where there aren't separate waiting spaces so that, if you are going to a hearing and are frightened of someone who is the applicant or the respondent, you are put in a position that's even more intimidating.[287]

Craig Pickering, of Families Need Fathers, agreed that the experience was intimidating, and said terminology such as "contact" and "residence" was alienating. Both Mr Pickering and Lynn Chesterman of the Grandparents' Association described involvement in the court process as akin to the feeling of being on trial, Ms Chesterman summing the experience up as "if somebody is making a decision: are you a good person or are you a bad person?"[288] Families Need Fathers had also found the Courts Service unhelpful and uninformative:

The Courts Service, I have to say, is not great at communicating what is going to happen to you. If you look at their website, it is not what I would call user-friendly. A lot of courts around the country refuse to put up our posters saying "Come along to one of our self-help sessions. You can talk to people who have gone through similar experiences. We might even be able to ensure you don't have to come back to this court." They just won't let us put up the poster, which seems very strange.[289]

236. The Family Rights Group told us it provided "DIY information sheets" for litigants in person and the Family Justice Council Parents and Relatives sub-group was developing a leaflet setting out sources of specialist advice, although this support was vulnerable in the current funding climate.[290] The Government's response to the legal aid consultation stated that "the Government recognises that further examination of the system to support litigants in person is required and we intend to review this issue".[291]

237. It is evident that non-lawyers accessing the family courts can find it a confusing and frustrating experience. While we accept that some steps have been taken by voluntary organisations to assist litigants in person, more clearly needs to be done and we welcome the fact that the Government is reviewing the available support system. We believe that the family court will need to become more attuned to dealing with parties representing themselves; and this will require procedures and guidance developed to accommodate the challenges posed by larger numbers of litigants in person.

238. It appears the Ministry of Justice may be underestimating the difficulties for litigants in person in sourcing appropriate specialist advice. Mr Djanogly told us:

On 6 April, the new Family Procedure Rules came into effect. These have been worked on for a long time. They have pulled together all the family legislation into one coherent set of rules. They will simplify those rules. They will simplify the application procedures. They significantly simplify the terminology involved within the system. All of these will greatly go to help litigants in person.[292]

239. The Family Procedure Rules 2010 constitute almost 300 pages of secondary legislation. While, as the Minister told us, they consolidate the procedural rules applying to cases in the family courts from the previous five sources, they are by no means written for litigants in person. Lucy Reed, a family law barrister and author of Family Courts without a Lawyer: a handbook for litigants in person, has commented that while "many large chunks of the rules are...expressed in less lawyerly style...I still don't think the rules will win any Plain English Crystals."[293]

240. The Family Justice Panel made a number of recommendations on court procedure, including the creation of a two-track system in the family courts for complex and simple cases, where simple cases on a single narrow issue could be dealt with in a two-hour tightly managed hearing.[294] The Panel also suggests that the terms "contact" and "residence" no longer be used. It heard from an Australian judge that the move away from using these terms in 2006 had been "very beneficial."[295]

241. We welcome the Family Justice Panel's recommendations on the creation of a two-track system in the family courts for simple and complex cases. We urge the Panel, however, to develop these proposals with unrepresented litigants in mind. In our view, this is the only realistic approach for robust reform of the family courts given the pending changes to legal aid in private law cases.

CROSS-EXAMINATION BY LITIGANTS IN PERSON WHERE THERE ARE ALLEGATIONS OF SEXUAL ABUSE

242. There are currently no rules to prevent litigants in person cross-examining victims of alleged abuse, whether children or adults. Sir Nicholas Wall told us: "It is a real difficulty because in the criminal sphere there is a statutory intervention...A potential abuser cannot cross-examine a victim. In family law there is no such provision. It is enormously difficult."[296] The evidence we heard from the judiciary is that the courts have to operate an ad hoc approach to such cases. Mrs Justice Pauffley described possible routes to obtain representation for the alleged abuser:

If a stepfather is accused by his adolescent step-children of having sexually abused them very seriously and over a number of years, you cannot have a man in that category cross-examining those young witnesses himself. It would be a denial of justice, and it would be emotionally the most upsetting of spectacles for any court to encounter. So you send them off to the Bar pro bono unit. You ring up chambers with whom you have perhaps a slight connection and you say, "Could you possibly send somebody along to represent this poor unfortunate?" But it is calling in favours, which is really outrageous in a civilised society.[297]

Mrs Justice Pauffley further stated that "The only other way I have seen it managed is for the guardian or the child's representative to shoulder the burden of cross-examining the young person with a list of questions provided by the accused, but that is less than satisfactory."[298]

243. The Government's response to the legal aid consultation changed the proposals to include the provision of legal aid for the victims of domestic violence and the non-perpetrating parent in cases of abuse. We note, however, that this does not address the problem of cross-examinations by alleged perpetrators.

244. The increase in litigants in person will give rise to more cases in which an alleged abuser cross-examines the person he or she is alleged to have abused. We recommend the Ministry of Justice considers allowing the court to recommend that legal aid be granted to provide a lawyer to conduct the cross-examination in such cases.

248 Q 166 Back

249 Q 163 Back

250 Q 167 Back

251 Reducing Delay-what works best?, Ministry of Justice, 2011 Back

252 Q 1 Back

253 Q 165 Back

254 Q 163 Back

255 Q 164 Back

256 Interim Report, p 64 Back

257 Q 166 Back

258 Q 294 Back

259 Interim Report, p 62 Back