Written evidence from the Magistrates'
Association submitted by the Family Courts Committee (FC 21)
THE OPERATION OF THE FAMILY COURTS:
SUMMARY
1. The Magistrates' Association believes that Cafcass
is failing to deliver its core services to vulnerable children
appearing in court, both in Private and Public law cases. In particular,
we comment upon the frequent failure of Cafcass to provide a named
Guardian to the courts, and thereby failing to ensure that a Guardian
is appointed to safeguard the interests of the child. We also
comment on delays in court proceedings caused by the failure of
Cafcass to meet the filing dates for reports, resulting in delays
and distress to families going through proceedings. We feel the
pressure on the services provided by Cafcass is resulting in the
needs of children in court are not being served and that this
situation requires urgent action and resolution. We also advocate
that Cafcass should return to the auspices of the now-named Ministry
of Justice from its current home at the Department of Education.
2. The MA expresses its concern at the loss of publicly-funded
and experienced family lawyers in the recent past, particularly
at a time when workloads in family courts are increasing. We emphasise
the importance of separate legal representation for the child,
particularly where there is no Guardian provided (see point 1),
and usually for both parents, and also point out that difficulties
in obtaining adequate legal representation leads to delays in
proceedings and added pressure on parties.
3. The MA supports compulsory attendance at a mediation
meeting before application to courts are processed for all family
cases, including those which are privately funded. We provide
evidence that disputes which are resolved through mediation are
quicker, cost less and are less acrimonious than those settled
in court. We also support the involvement of children in mediation
and comment on the advantages to them of being involved in making
arrangements that will impact upon their lives. However, we express
concern at the low take-up of mediation, often, we believe, due
to the failure of the legal advisor or solicitor to make clients
aware of these services.
4. We support greater openness in family courts to
encourage a wider understanding of the legal and court process
and why decisions are made and we suggest ways in which this could
be achieved, such as "Family Court Open Days" without
compromising confidentiality of individual cases (which we feel
is extremely important) or encouraging intrusive media access.
5. We also comment on the value of assessments in
family proceedings. We feel that unnecessary and unjustified assessments
by experts and others can be a major source of delay and expense
in family courts.
6. The MA comments on the situation of persons lacking
capacity, and how we feel these cases could better be dealt with
by the Family Proceedings Court (FPC) rather than transferring
them to the County Court. We ask for improved access to a litigation
friend for the person in this case, rather than incurring delays,
as at present, by constant referrals to the Official Solicitor.
7. The MA considers that there is a need for the
establishment of a single comprehensive family court data recording
and reporting system. This should provide urgently-needed and
reliable data on: workload, performance of the courts and cost
of the family justice system.
8. Finally, we express our concern the correct amount
of work should be completed at the FPC level and that adequate
resources should be available to enable FPCs to fulfil their appropriate
role within the family courts. There has been an increase in applications
in the wake of "Baby Peter" at a time when many FPCs
are experiencing a lack of legal advisors and other resources.
INTRODUCTION
1.1 The Family Courts Committee (FCC) of the Magistrates'
Association (MA) welcomes the opportunity to make this submission
to the Justice Select Committee enquiry into the workings of the
Family Court.
1.2 The FCC represents Family magistrates sitting in Family
Proceedings Courts in England and Wales. There are some 5000 -
6000 family magistrates selected from all backgrounds, age groups
and ethic groups. They are unpaid but receive special training
and are regularly appraised. They are assisted in court by a qualified
legal adviser.
1.3 Sitting as a Bench of three, family magistrates, with
their legal adviser, case manage and magistrates make final decisions
and orders for both Public and Private Law applications. In the
decision-making process, they scrutinize the papers, hear evidence
and representations and order reports. The welfare of the child
is paramount and they are always mindful of avoiding delay. They
are however dependent on the parties and agencies and, where appropriate,
experts filing statements and reports as directed.
1.4 The FPC hears matters lasting up to 5 days duration. Longer
and more legally complex matters are transferred to the County
Court. However, suitable cases that start in the County Court
are also transferred to FPCs, based on criteria set out in the
Allocation practice direction. Most public law cases start in
the FPC while private law applications can commence at either
court.
2 CAFCASS
The effect of Cafcass operations on court proceedings
and the effect of sponsorship by the Department of Education
2.1 The MA has been concerned for some time about
the service that Cafcass provides to the FPCs in both Public and
Private Law Cases.
2.2 At its last AGM in November 2009, the MA unanimously
passed the following motion:
"This AGM considers that Cafcass is failing
to deliver its core services to vulnerable children appearing
in our courts and calls upon the Government to conduct an urgent
review of how best to meet the needs of such children, reduce
delay and improve local accountability".
2.3 We are concerned that, despite extra funding
by Government, a large backlog of cases requiring Cafcass input
remains in parts of the country. We hear many cases where children
going through the courts have not had the services of a Guardian
at an appropriate stage and the court does not have the benefit
of a Guardian representing the child to assist in its decision-making.
We therefore would like to see s.41 of the Children Act fully
implemented, in that s.41 enables the court to appoint a Guardian
to safeguard the interests of the child and Cafcass are not providing
the court with a named guardian in the majority of cases for children
who come before our courts. Despite a large and sustained increase
in Public Law applications, we consider it essential that the
court has the benefit of a Guardian throughout proceedings to
support the child, communicate the views of the child and to advise
the court on welfare issues. The court is responsible for the
conduct of the case and expects its directions to be carried out
in the best interests of the child. It cannot be right that where
the court is required to make the child's interests paramount
that the child does not have someone reporting to the court representing
their interests.
2.4 The level of Private Law applications tends to
follow a similar pattern to Public Law and a similar increase
is being experienced. Cafcass frequently fails to meet the filing
date for reports which can take up to 26 weeks and beyond. Frequently,
the non-availability of a report is only communicated to the court
late into the adjournment, after a hearing date is fixed. Not
only does this cause unnecessary delay, but it is particularly
difficult to explain this to parents eg a father who has not had
contact with his child for many months and then is denied any
hope of contact for a further period due to the failure of Cafcass
to comply with the directions of the court. Such parents can feel
they are being punished for matters beyond their control. We hope
that full implementation of the President's Private Law Programme
will ease this.
2.5 The failure of Cafcass to appoint Guardians in
public law and file section 7 reports in private law matters according
to the directions of the court causes delay, puts pressure on
the court and other agencies and is expensive.
2.6 We recognize that Cafcass and the services it
provides are under pressure, and are likely to continue to be
under severe financial pressure, but we believe that it is more
cost effective for resources to be directed in children's interests
at an early stage. If that does not happen there are increased
risks of inappropriate decisions being made and incurring greater
costs and difficulties for the children later.
2.7 When Cafcass was originally set up in 2002, it
came under the auspices of the Lord Chancellor's Department. It
was later moved to The DCSF, now the Department of Education.
As Cafcass provides a service to the Court, we have advocated
for some time for a return to the now-named Ministry of Justice.
This would emphasise its independence, and allay fears that it
is another department of social work. All too frequently we find
that the Guardian's role can overlap that of the social worker
in the case. In addition we think that MOJ Court statistics should
be reliable and independent and not have to rely on Cafcass to
supply statistics.
2.8 Cafcass Cymru serving the Welsh region is administered
by the Welsh Assembly Government. We are not aware of similar
concerns affecting its service delivery. They are however experiencing
a similar increase in applications which is adding pressure to
resources.
3. LEGAL AID
Impact on court proceedings and access to justice
of recent and proposed changes to legal aid
3.1 The MA has been concerned at the loss of publicly-funded
family lawyers in the recent past and has serious concerns about
the latest LSC contracts tendering process. We are dismayed at
the prospect of a loss of experienced family lawyers at a time
when workloads are increasing. The MA does not understand the
logic. At a time when care proceedings have risen by 30%, why
is the number of family legal aid firms set to halve from October
2010?
3.2 There is an increase in litigants in person due to difficulties
in obtaining adequate legal representation. This delays proceedings
and is an added pressure on the court, which ensures that they
are not disadvantaged because of this.
3.3 Parents and children in public law proceedings are among the
most vulnerable in our society. Some parents have mental health
issues and learning disabilities and a substantial minority lack
capacity to such an extent that they need the assistance of a
litigation friend, usually the Official Solicitor. The child is
a separate party in public law proceedings and needs to have an
experienced and competent solicitor with sufficient time to deal
effectively with their case. This is particularly important when
the tandem model envisaged by Section 41, Children Act 1989 of
the child having a solicitor and a guardian is under stress due
to the inability of Cafcass to provide a children's Guardian promptly
in all cases and again with sufficient time when they are appointed
to deal with the case and progress it without delay.
3.4 Each parent usually needs a separate solicitor because of
the conflict of interest and the allegations being made against
them. Geographical access to justice is also very important.
3.5 In Private Law proceedings, an increase in fees
coupled with extra costs for contact activities has meant that
any applicant who has to engage in the entire process including
breach proceedings has to pay a substantial amount of money. In
particular, those who just fail to qualify for legal aid are hardest
hit.
4. MEDIATION
The role, operation and resourcing of mediation
and other methods of resolving matters before they reach court
Compulsory Mediation
4.1 The Magistrates' Association supports compulsory
attendance at a mediation, information and assessment meeting
in relation to all family cases (with limited exemptions) before
a court application is processed. That would increase the take-up
of mediation, reduce court waiting lists and encourage co-operation
over children.
4.2 Family disputes which are resolved through mediation
are cheaper, quicker and, according to academic research, less
acrimonious than those disputes which are settled through the
courts. Despite these advantages, only some 20% of people who
are funded by legal aid for family breakdown cases (excluding
those involving domestic violence) currently opt for mediation.
4.3 It is the duty of the solicitor or legal adviser
to advise their legally-aided clients of the option of mediation
in family law cases, although currently there is a financial disincentive
to do so as it will result in the loss of potential fees. In response
to the 2007 National Audit Office (NAO) survey of recipients of
legal aid, 33% said that they had not been made aware by their
adviser that mediation was an option. Of those who were not told
about mediation, and so did not try it, 42% said they would have
been willing to. This represented, potentially, some 14% more
cases overall; and even higher rates of take-up might be possible
if the option of mediation were better understood by clients.
4.4 Early results and evaluation of a pilot scheme
to make in-court family mediation available to legally-aided parties
has shown that 43% of parties are still not told about mediation
by their lawyers. 2010 National Family Mediation (NFM) figures
show that since the NAO report in 2007 the take up has only increased
by 1000 cases a year. Until assessment for mediation is made compulsory
many people will still be ignorant of mediation's benefits both
to their purses and their emotional well being.
Mediation Saves: Costs and Delay
The NAO found the average cost of legal aid in non-mediated
cases is estimated at £1,682 compared with £752 for
mediated cases, representing an additional annual cost to the
taxpayer of some £74 million. Not all cases are suitable
for mediation, for example, where there has been a history of
domestic abuse. Nevertheless, if 14% of the cases that proceeded
to court had been resolved through mediation, there would have
been resulting savings equivalent to some £10 million per
year. Making assessment for mediation compulsory would therefore
lead to instant savings for the LSC.
The NAO also found that mediated cases are quicker
to resolve, taking on average 110 days, compared with 435 days
for non-mediated cases.
At the moment such data is only available for legally-aided
cases. The Magistrates' Association supports compulsory assessment
for suitability for mediation in all family cases including those
which are privately funded.
Children in Mediation
4.5 The Magistrates' Association supports the involvement
of children (if they so wish) in mediation. Many National Family
Mediation (NFM) services now routinely invite children to meet
with the mediator in un-officious surroundings so that the children's
views can be heard. The advantages for children and young people
are that they get the chance to be a part of making arrangements
that will have a big impact on their lives: they can ask questions,
offer practical suggestions, express their feelings or concerns
or simply hear what is being planned. The pity of it all is that
without compulsory assessment for mediation being built into routine
court procedures, and particularly on application, most children
will still never get the opportunity to have their voices heard
in the divorce and separation process at all.
It seems odd that there is currently a ground swell
for the judiciary to listen to children, with all the connected
difficulties of confidentiality, procedure and training for judges,
at a stage in the court process when parents' attitudes have been
hardened by the anxiety and stress of court appearances. Laudable
as current efforts to raise awareness of children's participation
might be, how much better if full advantage were to be taken -
right now - of services such as those provided by NFM: a service
that has benefited many families over the last 30 years.
5. CONFIDENTIALITY
AND OPENNESS
Confidentiality and openness in family courts,
including the impact of recent changes in the Children's, Schools
and Families Act
5.1 The MA supports greater openness in the Family
Courts in order that the public should better understand the legal
process, court procedure and why decisions are made.
5.2 We feel strongly that individual cases should
remain confidential due to the highly personal nature of disclosures
in court, that participants should have full confidence in the
court and to ensure that children, parties and professionals disclose
full and frank information to the court.
5.3 We are against intrusive media access to sensitive
information, even if anonymised, due to the risk that details
alone can identify people locally, cases are at risk of sensationalisation
and that children could be inhibited when talking about sensitive
information.
5.4 Children have indicated that they are against
information about cases concerning them being made public.(i)
5.5 Although sanctions could be imposed, it would
be difficult to control interactive blogs, readers /viewers views
other IT information and exposure on websites.
5.6 Under the current legislation, the press can
attend court and report proceedings anonymously. There are restrictions
in what they can report and this is subject to applications to
the court. These applications can be lengthy and delay proceedings.
5.7 We do not support the clause in the Children's
Schools and Families Act whereby increased media reporting in
family courts will be allowed in 18 months time by a vote in Parliament
following a review and evaluation of current changes.
5.8 The MA is supporting the pilot on anonymised
reasons published on BAILII for now. However, we have reservations
regarding its long-term benefit, and the time taken in anonymising
reasons.
5.9 The MA would actively support "Family Court
Open Days". Greater London Family Panel held a day in October
2009 across London. Members of the public and children were able
to observe mock trials, participate in the decision-making process
and ask questions.(ii)
- (i) Children's Commissioner's research on
children's views on press reporting, published Spring 2009.
- (ii) Greater London Family Panel Open Day
at Richmond, Croydon, Stratford, Brent, October 2009.
OTHER MATTERS
6. ASSESSMENTS
6.1 Our survey of FPCs in Autumn 2009 unanimously
identified assessments by Experts and others was the single biggest
cause of delay. Experts in particular are in short supply and
their reports take time and are costly.
6.2 FPCs are being more robust about ordering assessments
that are un-necessary and are not in keeping with the timetable
for the child. We consider that the culture of almost endless
assessments, if we agreed them, needs to change. Sometimes they
are justified, such as where parents have learning disabilities;
where there are more specific problems; or where none have been
done before. But, for example where parents want repeat assessments
every time they have another child usually just leads to further
delays and is of no benefit to the child.
6.3 We consider the Practice Direction on the Appointment
of Experts is satisfactory but enforcement can be difficult.
7. PERSONS LACKING
CAPACITY
Family Proceedings Courts deal with many disadvantaged
people. However, when a parent lacks capacity, the case presently
has to be transferred to the County Court, although in every other
respect the case is suitable for the FPC. Draft rules allow for
FPCs to deal with such cases and we would suggest that this is
implemented without delay. However, the Official Solicitor is
overwhelmed by requests to act as litigation friend and there
is presently a backlog. In any event, when he does act, the case
is effectively run by the local solicitor but delay is built into
the system by the constant need to refer back and receive instructions
from the Official Solicitor. We would suggest that there is a
review of the present arrangements into arranging for a person
lacking capacity to have the benefit of a litigation friend when
they are legally represented.
8. COURT STATISTICS
8.1 The MA considers there is an urgent need for
reliable court statistics to provide data on the following:
- (i) Workload within the Family Justice systems
- there is a need for a single comprehensive and complete Family
Court data recording and reporting system. This would make reference
to the generally accepted situation that current reporting by
HMCS, Legal Service Commission and Local Authorities is inconsistent
and there is a lack of agreement on the number of cases, number
of children involved, number of cases in the FPCs and County Courts
etc.
- (ii) Performance of the courts - this would
set out the need for appropriate recording and reporting of court
direction and actions and refer to the lack of appropriate reporting
on the performance of all Family Courts in dealing with cases
on a timely or agreed basis ie in agreement with the "timetable
for the child". Current systems are crude and the only measures
are "number of weeks" which do take into account need
for experts reports, the agreed "timetable for the child",
assessment periods.
- (iii) Cost of the family justice system -
the new reporting system must enable the proper cost of the family
justice system to be known. This would include:
- HMCS Family Court costs.
- Legal Service Commission costs.
- Local authority costs.
- Cafcass cost.
- Cost of expert assessments.
9. FAMILY COURT
RESOURCES
9.1 The MA has been concerned for some time that
the correct amount of work should be completed at the FPC level.
Implementation of the Allocation Order has indeed increased the
number of cases retained at and transferred to the FPC.
9.2 The increase in applications in both Public and
Private Law in the wake of Baby Peter has put additional pressure
on some FPCs. In some areas. However, FPCs are experiencing a
lack of legal advisers and other resources due to HMCS cutbacks,
which is preventing them from fulfilling their appropriate role
within the family courts. In addition, we are dismayed that Family
work has been completely omitted from proposals regarding court
closures.
9.3 When workload settles down, we would expect to
be able to work to a 50/50 completion rate with other courts.
RECOMMENDATIONS
Cafcass
1. The MA considers that Cafcass is failing to deliver
its core services to vulnerable children appearing in court and
urges the Government to conduct an urgent review of how best to
meet the needs of such children, reduce delay and improve local
accountabililty. (AGM Motion November 2009) (para 2.2).
2. We also advocate that Cafcass should return to
the auspices of the now-named Ministry of Justice from its current
home at the Department of Education, which we feel would emphasise
its independence and allay fears that it is another department
of social work (para 2.7).
Legal Aid
3. The MA calls for a halt to the diminishing numbers
of law firms carrying out legally-aided family work.
Mediation
4. The MA recommends making compulsory the attendance
at a mediation, information and assessment meeting in relation
to all family cases (with limited exceptions) before a court application
is processed (including those which are privately funded). This
would increase the take-up of mediation, reduce court waiting
lists, encourage co-operation over children and help children
to be routinely involved in the mediation process (para 4.1, 4.4
& 4.5).
5. We recommend all efforts are made to encourage
legal advisors and solicitors to make their clients more aware
of the availability of mediation services and what they involve
(para 4.3)
Confidentiality and Openness
6. We do not support the clause in the Children's
Schools and Families Act, whereby increased reporting will be
allowed in 18 months by a vote in Parliament following a review
and evaluation - and recommend that this clause is not enacted
(para 5.7).
7. The MA encourages more support for panels to organise
"family court open days" (para 5.9).
Persons Lacking Capacity
8. The MA suggests that Government carries out a
review of the present arrangements into helping a person lacking
capacity to have the benefit of a litigation friend when they
are legally represented.
9. The MA recommends that the draft rules enabling
FPCs to deal with cases dealing with persons lacking capacity
are implemented without delay.
Court Statistics
10. The MA recommends the establishment of a single,
comprehensive and complete Family Court data recording and reporting
system, including data on workload, performance of courts and
the cost of the family justice system. This would help to resolve
the situation of inconsistency and lack of agreement on important
issues such as the number of cases dealt with, numbers of children
involved, outcome of cases and the true cost of the family justice
system.
Family Court Resources
11. The MA urges that adequate funding is allocated
to FPCs to enable them to fulfil their appropriate role within
the family court system.
12. The MA is dismayed that family work has not been
taken account of in proposals regarding court closures and recommends
that, henceforth, this is taken into consideration.
CONCLUSION
The Family Courts Committee of the Magistrates' Association
would welcome the opportunity to give oral evidence to the Select
committee from the perspective of the Family Proceedings Courts.
September 2010
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