Conclusions and recommendations
Overview of the current system
1. Comparing the number of cases between years should be a simple exercise that would allow the Ministry of Justice to at least begin to assess the impact of policy and legislative changes on the family court system. We are therefore surprised that neither the current nor the previous administration has acted to provide a robust evidence base for the formation of policy.
(Paragraph 13)
Data
2. This Committee and its predecessor committees have repeatedly highlighted the need for robust data gathering to allow the development of evidence-based policy. We were extremely disappointed by the serious gaps in data that we and the Family Justice Review found during our inquiries. It is a concern to us that major changes to the system are being contemplated when there are such gaps in the evidence base. The Ministry of Justice, in particular Her Majesty's Courts and Tribunals Service, and the Department for Education must begin to improve data collation now; without such evidence, reform of the family justice system could be fatally undermined before it has even begun. We think the Ministry of Justice should take the lead on data collation, and we wish to see a report on progress by the end of 2011. (Paragraph
27)
The Family Justice Review Interim Report
The focus of the interim report
3. 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.
(Paragraph 35)
4. 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.
(Paragraph 36)
Costs
5. 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.
(Paragraph 44)
Government's response to the Interim Report
6. 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.
(Paragraph 46)
Underpinning Principles
Our evidence
7. The evidence shows that courts rarely deny contact between child and parent. Most applications that result in no contact are abandoned by the applicant parent. In our view this reflects the reality of the cases that come before the court. In the majority of cases it will be in a child's best interests to have meaningful contact with both parents. In cases where a parent constitutes a danger to his or her child, either directly or through failing to protect them from others, the courts must remain free to refuse, or specify the arrangements for, contact in order to protect the child.
(Paragraph 65)
8. The Australian experience of introducing a shared parenting presumption shows that it does not contribute to children's well-being, which, in our view, must be the paramount aim and objective of the family courts. We believe therefore that the best interests of the child should remain the sole test applied by the courts to any decision on the welfare of children in the family justice system.
(Paragraph 66)
The Family Justice Panel's recommendations
9. We do not see any value in inserting a legislative statement reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm, into the Children Act 1989. Such a statement is not intended to change the current position as the law already acknowledges that a meaningful, engaged relationship with both parents is generally in a child's best interests. The Panel has concluded that the family court system is allowing contact in the right cases; in our view nothing should be done that could undermine the paramount importance of the welfare of the child.
(Paragraph 71)
10. We welcome the intention behind the Family Justice's Panel's recommendation that there be a statutory six-month time limit on care and supervision proceedings, but question, on the evidence we have heard about delay, whether such a time limit would be feasible, even with the creation of a Family Justice Service. The average public law case currently takes over a year, despite the court's obligation to make decisions with as little delay as possible. It is not envisaged that the Family Justice Service will have greater resources than the current system: the aim is that it will use rather less. In these circumstances it may be that a statutory six-month time limit is unenforceable.
(Paragraph 73)
Mediation and other means of preventing cases
of reaching court
Number of cases reaching court
11. Cafcass, the Education Minister, and the MoJ all told us that it is not the case that too many care cases are coming before the courts. However, because of problems with the statistics it is not possible to tell if the proportion of cases in which the courts agree with the local authorities' assessment has changed. We note that in the past it has been necessary to commission research to calculate the proportion of applications resulting in various types of orders. There may be a need for further such research in future if there appears to be a significant shift in the proportion of cases in which the courts reject the assessments of local authorities.
(Paragraph 81)
Family Group Conferences
12. Family Group Conferences are a way to enable parents to makes necessary changes in order to retain care of their children, or to enable children to remain with the extended family. In cases where it is not possible for the child to remain with the family, they can help reduce delays once the case reaches court. Given the high costs of court cases, legal aid and the high costs of keeping children in care, the potential saving from even a small reduction in the number of care cases is considerable. We were very impressed by the account of Family Group Conferences in Liverpool. It is a matter of regret that a service with an apparent 100% success rate is being cut back.
(Paragraph 88)
Other means of diverting public law cases from
court
13. We agree with the Interim Report that further research is required on a range of measures which could potentially help parents to make changes which could resolve pubic law cases without taking children into care, or without proceedings. We are particularly interested in the wider use of "letters before proceedings". However, the Department has no data on how often they are used, what the barriers are to their wider use, or how effective they are. Given that receiving a letter before proceedings confers entitlement to non-means-tested legal aid we find this lack of any evidence base particularly surprising. We recommend that the Government should commission such research.
(Paragraph 91)
Number of cases reaching court
14. We received evidence that a large number of private law cases that currently reach court involve families with multiple problems. A high percentage of cases involve domestic violence or other child protection concerns. Care must be taken that any measures to divert cases from court only seek to do so where that is in the best interests of the child. This will be more complex than simply screening for domestic violence.
(Paragraph 97)
Signposting
15. More
support for separating parents could reduce the number of cases
reaching court and reduce the negative impact of separation on
children. However, there is currently a lack of evidence as to
which early interventions are most effective. There is also the
risk that some of the numerous cases where one parent has no contact
could be diverted into court. We are not clear to what extent
the proposals in Strengthening Families are proposing a referral
and signposting service or a service which itself provides additional
help. We call on the Government to clarify this. (Paragraph 106)
16. Currently only one in ten separating parents resolves their disputes in court. The evidence we received is that a large number of these parents have multiple problems. This means that they are unlikely to be diverted from court by anything other than intensive intervention. In addition, there are many cases involving safeguarding concerns which should not be diverted from court. Some parents could be diverted from court by low-level intervention, but the Government should be realistic about the impact of any proposals on the number of private law cases reaching court.
(Paragraph 107)
Resources
17. The wider funding to accompany any signposting service will be crucial. There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate. We heard during our previous inquiry into legal aid that the Big Society Bank will be a potential source of capital for charities and social enterprises, by means of social impact bonds and other financial products. We call on the Government to confirm that such bodies which provide early intervention for families which need assistance would potentially be eligible for such capital and to ensure that those bodies understand how they can become involved. We also think that the Government should consider whether the payment-by-results principle which it is championing elsewhere might be applicable here, with financial incentives available for organisations which have a successful impact providing effective support for families. Our predecessor Committee's report on Justice Reinvestment made the case for more funding to be spent on early intervention, with consequential reductions in the need for expensive prison spaces at a later date; we support that approach as a longer-term aspiration for criminal justice policy.
(Paragraph 111)
Mediation
18. We broadly welcome the Practice Direction. The previous system, where people on legal aid had to consider mediation but those who could afford to pay their own fees did not, was patently unfair. The Practice Direction will ensure that all parties have considered mediation, which will reduce the burden on the courts. We also welcome the fact that the Practice Direction is not limited to mediation but includes other forms of dispute resolution.
(Paragraph 118)
19. We note that the Practice Direction uses a definition of domestic violence similar to that in the legal aid Green Paper. In its response to the consultation on the Green Paper the Government adopted a broader definition and encompassed safeguarding concerns. We recommend that the Practice Direction is changed accordingly.
(Paragraph 119)
Training
20. Poor privately-funded mediation is bad for parents (who have to pay for it), children (who are impacted by the delays it causes and by agreements which do not consider their needs) and also for the tax payer. While the tax payer does not have to pay for the mediation, the public purse bears the cost when mediation fails and cases reach court that could have been resolved by better trained mediators. We are very concerned that there are currently no minimum qualifications for privately-funded mediators. We agree with the Interim Report and recommend that privately-funded mediators should have to meet the current requirements for legally aided mediators set by the Legal Services Commission.
(Paragraph 126)
Potential for greater use of mediation
Voice of the child
21. Hearing the voice of the child during mediation is vital. It is also important to ensure that agreements do not break down. We welcome that fact that LSC mediators need qualifications to meet children. However, we are concerned by evidence that some mediators do not see children. Children should be able to meet mediators or otherwise be involved in mediation and have their views taken into account, where they so wish. In cases where children have not been involved in the mediation process, steps must be taken by the mediator to ensure that the agreement is in their best interests, and that they are kept informed about what is happening.
(Paragraph 151)
22. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreements or narrowing the issues in dispute. This avoids the use of the courts, with considerable savings for legal aid, Cafcass and the courts service. It can also be faster and less traumatic for families. We therefore share the Government's belief that there is scope for greater use of mediation. However, in developing its policies on the use of mediation, the Government needs to recognise that: some types of mediation appear more effective than others, and it is imperative that scarce public funds are used to best effect; and mediators need to be professionally trained and know how to recognise and handle sensitive cases where there are accusations of domestic violence or safeguarding concerns. We call on the MoJ, in its response to this Report, or sooner, to spell out how those principles will inform the greater use of mediation which is it seeking to encourage.
(Paragraph 152)
Proposed changes to legal aid
23. We are concerned that the Government may not have budgeted for enough additional mediations in its legal aid proposals. With more than 200,000 people losing eligibility for legal help and representation, the Department's prediction that only 10,000 extra mediations will be required seems low (albeit more realistic than their initial estimate of 3,300). We welcome the Government's assurance that it will pay for mediation for all eligible people. However, to help manage the Department's budget we call on it to re-examine the figures and bring forward more realistic estimates.
(Paragraph 156)
Cafcass
Delays
24. While the exact figures are disputed, it is clear that Cafcass has made substantial progress in reducing the number of unallocated and duty allocated cases in public and private law. We welcome this progress and hope that it can be maintained. It continues to be a cause for concern, however, that Cafcass was unable to reassure us that, in the 221 cases allocated to managers, those managers were working actively on all those cases. We call on Cafcass to measure and monitor the amount of work carried out by managers in cases allocated to them in order to ensure that genuine progress is made and that these cases are not simply moved off the unallocated list to make those performance statistics look more acceptable. We expect Cafcass to report back to us on this point at the earliest reasonable opportunity.
(Paragraph 173)
25. We share the concerns of the Committee of Public Accounts about the ability of Cafcass to sustain its recent progress given that there is no sign of a future fall in the number of care applications. We are also concerned about the ability of Cafcass to cope with a range of potential future stresses, including any restructuring of itself or of the court system, any additional delays in the court system, and cuts to local authority budgets (which could lead to more poorly prepared cases reaching court).
(Paragraph 174)
Management
26. We
are puzzled and concerned by Cafcass's continued aversion to the
use of self-employed guardians, especially when the amount it
spends on agency social workers has more than doubled in a year.
Self-employed guardians are cheaper than agency staff and no
more expensive than directly employed staff. At the same time
they offer greater flexibility, and their expertise is valued
by the judiciary. Cafcass should be making considerably greater
use of self-employed staff, particularly in the geographical areas
where it has difficulty recruiting. (Paragraph 180)
27. Proposed changes to the family justice system in the Interim Report will, if implemented, make demands on Cafcass in terms of change management. It will be crucial for management to deliver that change in ways which support the staff (and self employed and agency workers) to deliver the necessary services for children. The recent experience of Cafcass managing staff, communicating with stakeholders, and the production of the very imperfect draft Operating Manual all indicate that Cafcass management needs urgently to take steps to improve the way they communicate with staff and with others working in the family justice system.
(Paragraph 185)
28. Whilst we recognise the need for Cafcass to be a managed service and for its staff to be supported, the appointment of experienced social workers could justify a lighter touch in management, allowing professional staff more discretion about the way they carry out their role than the detailed and process driven Operating Manual would suggest. This is the future for social workers Professor Munro has set out in her report. Cafcass should look at the lessons that it can learn from her report and adopt Professor Munro's proposed approach.
(Paragraph 186)
Service Cafcass provides to children
29. The entire family justice system should be focused on the best interests of the child. Cafcass as an organisation is not. We accept that Cafcass has had to make difficult decisions in order to reduce delays and the number of unallocated and duty allocated cases. However, in order to make progress Cafcass has had to offer a "safe minimum" service, and the amount of time that Cafcass workers currently spend with children is unacceptable in the long term. Cafcass needs to give its workers the opportunity to do what they want to do: spend more time with children. This will involve a change in management culture, and the wholesale re-writing of the draft Operating Manual to focus on identifying and meeting the needs of individual children. Cafcass will also have to re-examine its staff's workload. The current median workload may well be too high to enable Cafcass workers to spend enough time with children. This should not be done at the expense of letting delays escalate, however. There is no doubt that some of the time spent in managing the system could be redeployed to spending more time with children.
(Paragraph 199)
The case for major change
30. We agree with the Interim Report that Cafcass should be made part of the proposed new Family Justice Service. However, we believe that in itself, this will not be enough. It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.
(Paragraph 206)
31. We call on the Family Justice Review to address directly the detailed future structure of Cafcass in its final report. We were interested in the suggestions we heard in oral evidence about the development of a wider range of providers, together with a more localised service (perhaps linked to the proposed new Local Family Justice Boards). Any future proposals will have to take into account that Cafcass operates a cash limited system and has to be able to deliver a timely and consistent service to all children, regardless of changes in the volume of cases, over which it does not have control.
(Paragraph 207)
Courts
Case management
32. 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.
(Paragraph 211)
Litigants in person
33. 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.
(Paragraph 224)
34. 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.
(Paragraph 237)
35. 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. (Paragraph 241)
Cross examination by litigants in person where
there are allegations of sexual abuse
36. 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.
(Paragraph 244)
Expert Witnesses
Unnecessary reports
37. We are convinced that there are unnecessary expert reports in some family cases. We note the Minister's comments that greater use could be made of non-expert witnesses, including foster carers. However, foster carers have a distinct role from that of experts, and while they can be a valuable source of information they cannot replace experts in those cases where there is a genuine need for expertise.
(Paragraph 257)
Case management and expert witnesses
38. It is clear to us that a lack of case management by judges is leading in some cases to too many expert reports. We are very interested in the practice direction that Mr Justice McFarlane, Family Division Liaison Judge on the Midland Circuit, has issued prohibiting the use of expert witnesses who cannot report within three months. We call on the Department to monitor the success of this practice direction.
(Paragraph 268)
39. We agree with the Interim Report that judges should take more responsibility for the instruction of experts. However, judges do not generally have support staff who are able to draft letters or to ring round checking experts' availability. They also do not currently have the knowledge of the market to instruct experts. A simpler solution is for the parties' solicitors to continue to do the initial work, but for judges to provide much more rigorous oversight; requiring clear explanations of why additional assessments are needed, ensuring the parties' solicitors find another expert if there is a waiting list, and asking the parties' solicitors to work together to reduce the number of questions for the expert. More generally, the Government needs to examine whether—as was put to us by some witnesses—there is a shortage of expert witnesses in some locations and in some specialisms, and work with other interested parties to tackle any such shortfalls.
(Paragraph 269)
Legal Services Commission
40. We
recommend that the Legal Services Commission moves to paying expert
witnesses directly. We understand that this would be an administrative
burden for the LSC, but it needs to be balanced against the potential
savings. (Paragraph 272)
Media and public access to the family courts
The Children, Schools and Families Act 2010
41. We recognise the need for transparency in the administration of family justice, and the equally important need to protect the interest of children and their privacy. However, our witnesses were united in opposing implementation of the scheme to increase media access to the family courts contained in Part 2 of the Children, Schools and Families Act 2010. While their reasons for doing so differed, and were sometimes contradictory, such universal condemnation compels us to recommend that the measures should not be implemented, and the Ministry of Justice begin afresh. We welcome the Government's acknowledgement that the way the legislation was passed was flawed, and urge Ministers to learn lessons from this outcome for the future.
(Paragraph 280)
Increasing public confidence in the family court
system
42. There is a tension between allowing the media to publish even limited information about cases in the interests of increasing public confidence and a child's right to keep personal information about them and their experiences private. There is a danger that justice in secret could allow injustice to children, or a perception of injustice. We believe the underpinning principle of the family court system, that all decisions must be made in the best interests of the child, must apply equally to formation of Government policy on media access to the family courts. (Paragraph
293)
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