Written evidence from the Public and Commercial
Services Union (FC 29)
FAMILY JUSTICE
INTRODUCTION
The Public and Commercial Services Union (PCS) is
the largest trade union in the civil service. We have over 300,000
members and represent over 60% of staff in the Ministry of Justice.
Our members work in Her Majesty's Court Service (HMCS) undertaking
all the key duties in the full range of posts necessary for the
court system to operate. Our members provide services for all
courts from Magistrates' Courts to the Appeal Courts as well as
the Probate Service. These range from Justices' Clerks, Regional
and Area directors, Legal Advisers, Court Clerks, Court Ushers,
Court Managers and administrative staff, including those who deal
with enquiries from the public in family cases and prepare the
papers for court.
The current trend in justice is to focus on "efficiency"
another word for cuts. PCS contend that in relation to family
courts the Ministry of Justice should be focusing on the needs
of vulnerable children and of court users and considering the
best way to deliver family justice. The courts used for family
hearings are part of the wider court estate and our members in
some areas of the country indicate that the amount of family work
continues to increase. There is an apparent absence of strategic
thinking in relation to family justice and it is a potential casualty
in the strategy of the bigger civil and criminal courts.
REDUCTION IN
HEARING VENUES
FOR FAMILY
CASES
Most of the cases relating to children and families
are heard in either the Family Proceedings Court which is part
of the Magistrates' Court or in the County Court. The Children
Act 1989 gives the two courts concurrent jurisdiction on cases
relating to residence and contact for children (formerly know
as custody and access). The Family Proceedings Courts and County
Courts both have jurisdiction in child protection cases, these
all start in the Family Proceedings Court with the more complex
cases being transferred to the County Court Care Centres.
There has been a trend towards large hearing centres
for family cases and particularly those cases dealing with child
protection. There needs to be a balance between service and efficiency.
Hearing more than one case in a court house can lead to the best
use of courtrooms but it can also lead to cases being heard in
the absence of parties who find it difficult to get to the large
central court and cannot afford repeated journeys.
Among the parents who are parties to child protection
cases there is a much higher level of disability than in the population
as a whole. It is often an aspect of their disability such as
learning difficulties, mental health issues or even physical limitations
which lead to their care of their children coming before the court.
These parents are not as mobile as the majority of the population
and are disadvantaged by their cases being heard a distance from
their home.
On 23 June 2010 the Government announced a public
consultation on the future of the Court Service proposing the
closure of 103 Magistrates' and 54 County Courts in England and
Wales. This represents over a third of Magistrates' and County
Courts and is likely to result in up to 1,000 job losses.
Whilst there has been public consultation on the
closure and rationalisation of courts in the past, there has never
been an announcement of proposals for England and Wales of this
size and scale before. The consultation is in the form of 16 consultation
documents one from each of Her Majesty's Court Service Administrative
Areas. Some areas have made it very clear which courts hear family
cases others have been less transparent. The consultation has
taken place over the main summer holiday period restricting the
opportunity of the public to respond and is for the minimum period
recommended by the cabinet office.
The HMCS consultation is based on a number of key
principles: greater utilisation of the courts; greater co-location
of criminal and civil courts with tribunal hearing centres; larger
courts; access to courts enabling the majority of the public to
be within an hour's commute to their nearest court by public transport.PCS
shares the desire to ensure that the courts are an efficient service
and fit for purpose in the 21st century and we will continue to
support changes which improve the service to the public and the
Judiciary that our members provide. However, PCS is concerned
that the proposals will damage the principles on which the justice
system has been founded. Whether it is a County Court or a Family
Proceedings Court a court must serve the community.
The consultation on court closures has been in the
form of 16 separate consultation papers each relating to one of
Her Majesty's Court Service administrative areas. In several cases
where one area proposes to close those courts which are on the
edge of the geographical area it administers, the adjoining administrative
area has also chosen to close the courts near to the border. This
leaves large rural and sometimes urban areas where there is no
court house any one can visit. In rural areas public transport
services are irregular and catching two buses can make it a very
lengthy journey which is particularly difficult for those who
also have caring responsibilities.
Seeking to balance efficiencies with the requirement
to deal with justice locally is at the heart of the debate. We
believe reducing the courts by a third and transferring the work
of delivering justice to fewer larger centres well away from the
communities where court users live undermines the requirement
that the handling of local justice is done and seen to be done
within the communities themselves. Citizens need to have confidence
that the justice system works and is seen to work in their own
communities.
A further concern is that many of the users of courts
are from disadvantaged and poorer communities and are less adaptable
as a result. The increased costs of travel which have been set
out in the consultation documents will also disproportionately
hit the poorer members of each community. We believe the outcome
will be more expensive as a result, it will take more time for
justice to be delivered cost more as a result and if, as we fear,
it results in citizens not participating then the end result is
that citizens in those communities will have less confidence in
the delivery of justice. Delay in the family court must be considered
in the timescales of a child a few weeks delay may seem nothing
to and adult but may feel like an eternity to a young child.
THE SEPARATION
OF FAMILY
AND CRIMINAL
HEARINGS AND
LOSS OF
HEARING VENUES
For many years courts aimed to improve the service
to family court users by ensuring that those attending for hearings
about their private and family life were not entering buildings
and waiting with those attending criminal proceedings in the Crown
Court or Magistrates' Court. This is particularly important for
the poorer and more vulnerable members of society who may live
in the same deprived areas as the criminals.
The most recent consultation on court closures seems
to suggest the greater co-location of criminal and civil courts
is a good thing. In Warwickshire the Northern Justice Centre which
houses the Family Proceedings Court is also a Police Station some
court users will be very uncomfortable attending a family court
in this building.
Traditionally Family Proceedings Courts were in the
Magistrates' Courts, concerns about the impact of mixing with
criminals led to buildings with separate entrances and waiting
areas for family case. More recently the formation of Her Majesty's
Court Service has led to Family Proceedings Courts and County
Courts using the most suitable facilities for family hearings
and sitting in adjoining rooms as in Coventry Magistrates' Court
or on different floors in the same building as in the Priory Courts
in Birmingham. However, not all courts have been able to acquire
such facilities and one way of separating family cases has been
to hear them in smaller court houses away from criminal work.
Some of the buildings proposed for closure are preferred
by court users for family hearings for the very reason they are
not frequented by criminals and their families and provide a better
venue for family cases for instance Alton Magistrates' Court in
Hampshire. Others such as the Yorkshire Courts of Selby and Bingley
have had money spent on video link facilities for vulnerable witnesses
and on disabled facilities which are not currently available at
the court to which the work is moving.
Some closures such as the loss of Family Court facilities
at Alnwick in Northumbria, Penrith in Cumbria, Skipton in North
Yorkshire and Keighley and Bingley in the adjoining County of
West Yorkshire leave large parts of the country with no courts
at all.
The co-location of criminal and civil work needs
to be carefully managed family cases demand privacy. If the buildings
hearing family cases are closed now, it is unlikely they will
be reopened.
POTENTIAL DELAY
PCS believe that the cuts are being rushed and may
not produce the savings sought in the timescales envisaged. The
impact on family justice has not been adequately considered.
Workload changes as the law changes. There has been
a lot of pressure to move family work to the Family Proceeding
Courts where cases can often be heard sooner and at less cost.
Some of that work was being diverted from the County Court to
mediation but court users with reduced family income due to pay
freezes or unemployment may find themselves unable to afford mediation
and financial pressures may cause an increase in family work.
Family cases relating to the protection of children
or adults may need to be listed at very short notice. This applies
to non molestation cases where an individual seeks the protection
of the court for themselves and their children and emergency protection
and care cases where the local authority seeks protection for
a child. A reduction in the number of courtrooms available for
family cases will lead to people having to travel to more distant
locations and delay in hearing their case.
Percentage court usage figures on paper look like
a powerful argument for closing courts however this measures actual
usage not level of booking. High usage can only be achieved by
listing several lengthy contested matters in the same court on
the basis they will not all be effective. Sometimes this works
out, at other times all contested hearings are effective and one
or more has to be delayed to another date. This causes parties
and witnesses distress and inconvenience. About a third of criminal
trials and probably less family cases are effective on the hearing
date and there are a multitude of reasons for this which the courts
try constantly to address.
Further at the time that a court seeks to list a
hearing for instance a contested application for an interim care
order all courts may be full of either contested family cases
or where the courtrooms are used interchangeably criminal trials
reduction in the available court rooms will lead to delay.
In relation to family cases the level of the workload
is not mentioned in the consultation papers, some urban courts
are struggling with the number of family cases and lack of court
rooms result in delays. At present some of the less used court
houses are available to ease this pressure such as Witney (Magistrates'
Court) in Oxfordshire and West Bromwich (Magistrates' Court) in
the West Midlands.
The courts estate should be carefully considered.
The consultation documents put forward many and varied reasons
for closure. It may well be that some courts are in the wrong
place and some are in the wrong building. Is the fact that the
current building is inadequate a reason for losing all court provision
from a major provincial centre, in some cases would it not be
more appropriate to keep the service and find alternate premises?
Much has been said in recent years about making family
justice transparent and this has been taken forward by inviting
the press to attend and proposals to publish the transcript of
these very private proceedings. Against this public confidence
is not built by dealing with cases further away from where the
parties live. If justice is a distant thing dealt with in the
big town in a strange building it is remote from those whose lives
it affects.
In the Family Proceedings Courts a family trained
Legal Adviser is needed for each hearing. If there is no family
Legal Adviser available on a particular day that hearing date
will not be available. There has been an activity based costing
model developed to determine the number of magistrates' court
staff of each grade needed for each region. PCS have asked how
the work of the Family Proceedings Court has been measured to
inform that model and has never received an answer. There are
different Senior Officers responsible for crime and family and
we have seen no evidence that the needs of the Family Proceedings
Court have been taken into account in determining the number of
Legal Advisers needed.
IMPACT OF
LOSS OF
COURT SERVICES
The County Court in particular is moving towards
a few large locations with much of the work being done in large
offices. The court has focused on the needs of its large commercial
customers who are constantly collecting debts and seeking repossession
of property. The needs of the individual with a family problem
are is lost. The model is one of business not service of process
not justice.
PCS is very concerned about the loss of our members'
jobs in the Court Service as a consequence of the proposed court
closures. There are fears that the transfer of work from the courts
identified for closure to other larger courts will result in delays
in the time it will take for cases to be heard. Our view remains
that justice delayed is justice denied.
The vision for the County Court of bulk processing
and centralised telephone systems does not take into account the
needs of the vulnerable and disabled. Cuts in the legal aid budget
have resulted in increasing numbers of parents on moderate incomes
dealing with family cases without legal representation this becomes
more difficult when the local court closes and they have to do
everything by post and telephone.
We believe that the job losses are an underestimate.
Other likely changes, such as further centralisation of work currently
done in county courts and magistrates courts to other centres
will result in further job cuts, in the courts that remain.
We believe the idea that court staff can be divided
into front line and "back office" is flawed. In smaller
courts the staff undertake a variety of roles and will all be
involved with dealing directly with the public. The transfer of
some processes to large centres will lead to staff being less
skilled and less able to assist court users.
CAFCASS RESOURCES
In family cases relating to children the officer
from CAFCASS is plays a key role in ensuring that the court is
aware of the wishes, feelings and interests of a child. This role
is undertaken by a Children and Families Adviser in Private Law
cases relating to contact, residence, parental responsibility
and specific issues such as education and religion. In Public
Law applications for Care or Supervision Orders the role is undertaken
by a Children's Guardian. The Guardian is the independent voice
of the child. Local Authorities are driven by a number of concerns
relating to finance, targets and policy. Whereas a Children's
Guardian is the person who voices the wishes and feelings or needs
(depending on age) of a child in cases where it is being argued
that the parents are unable to care for or protect or are neglecting
or harming the child.
PCS members working in the courts, particularly the
Legal Advisers in the Family Proceedings Courts, are aware that
the demands on the individual Guardians are competing. On the
one hand the "Public Law Outline" which sets the standards
for care proceedings requires initial and final reports from a
Children's Guardian and envisages that this will be the same individual.
The initial report is required by the sixth week after the application
is issued. In conflict with this CAFCASS managers have been moving
away from individual Children's Guardian's who take full responsibility
for a care case and check carefully that the Local Authority are
looking at the interests of a child. Often the application is
more than six weeks old before the Children's Guardian is appointed
and Guardian's are instructed not to scrutinise Local Authority
Files.
There is a real tension between the demands of the
legal system for an independent voice of the child and the available
resources at the front line in CAFCASS. The vital role of the
Children's Guardian cannot be eroded there are some things which
must be provided to ensure justice and an independent and dedicated
Guardian to properly scrutinise the actions of the Local Authority
in a case where a child is being removed from parents is surely
a key protection which should not be undermined.
There has been pressure to make family court cases
more transparent Members of Parliament see constituents who feel
aggrieved about the way a child has been taken from them by a
Local Authority, some have a genuine grievance others have been
unable to put the needs of the child before their own needs. Members
of Parliament faced with these grievances find it difficult to
assist these constituents because of the necessary privacy to
protect those children. However, the one safeguard the legal system
gave to these children was an independent Children's Guardian
with the expertise to scrutinise the actions of the Local Authority
and report to the court. If this safeguard is undermined the courts
may not have all the issues they should consider brought to their
attention.
We would ask the select committee to press the Department
to ensure that the specific and particular needs of family justice
are given the priority and resources needed for this sensitive
area of work and that Justice does not become the main casualty
to all the cuts in resources.
September 2010
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