Operation of the Family Courts - Justice Committee Contents


Written evidence from the Family Law Bar Association (FC 35)

EXECUTIVE SUMMARY

1.  It has rightly been observed by judges and commentators alike, that since the abolition of the death penalty, there is no more draconian order that a Judge can make than to order the permanent removal of a child from its natural family, against that family's wishes. Those orders are the subject of applications in the Family Courts daily up and down the country.

2.  Even where the state is not intervening in family life, separation and divorce is a difficult and deeply unsettling experience for the participants, and worse still for the children and young people affected; family court litigation can be extremely stressful and disruptive. There are over 120,000 divorce applications per year[74] and more than 100,000 children aged under 16 are in families where the parents get divorced each year. The work of the family lawyer, and the work of the family courts, affects more members of society than the criminal or other courts.

3.  Given the importance and gravity of decision-making of the family courts, and the large number of people who are affected by such decisions, it is vital that the family courts are properly resourced, and that family court processes are properly managed.

4.  Those who work in the Family Justice system are conscientiously engaged in promoting efficient and robust decision-making for those who seek relief. But for a number of years now that professional engagement has been tested to a very significant degree; that engagement is now significantly under threat, by a lack of resources and respect for the importance of its work.

5.  In short, the family courts are now stretched to breaking point.

6.  Reform of the family courts and its processes is the subject of separate review (Family Justice Review). There is much which is good about the Family Justice system, and in the quest to achieve improvements in the system, we earnestly hope that those aspects of the system which are sound should be preserved.

THE FLBA

7.  The Family Law Bar Association (FLBA) represents the interests of approximately 2,300 barristers nationally who specialise in family law.

8.  The overwhelming majority of work carried out by the family bar can be summarised as follows.

  • (a)  State intervention in the care of children ("public law").
  • (b)  Private individuals' disputes concerning family life, in particular the care of children ("private law").
  • (c)  The financial consequences of divorce or separation ("ancillary relief" or "AR").

9.  In all areas, the Family Bar works at the "front-line" with those, and for those, who are among the "poor and increasingly fractured society"[75] in which we live. Many of our clients are vulnerable - emotionally, socially, and financially. Many are victims of violence, or are perpetrators whose need for representation and advice is no less great. Many have lives blighted by alcoholism or drug abuse. Many of our clients do not have English as a first language; many speak no English at all - vital instructions are communicated through interpreters. The work is challenging, yet rewarding.

THE ISSUES

The effect of CAFCASS's operations on court proceedings, and the impact on the courts of the sponsorship of CAFCASS by the Department of Education

10.  The statutory duties imposed on CAFCASS by sections 12, 13, 14, 15 and schedule 2 of the Criminal Justice and Court Services Act 2000 (CJCSA) are clear. CAFCASS has a duty to

  • (a)  Safeguard and promote the welfare of the children.
  • (b)  Give advice to any court about any application made to it in such proceedings.
  • (c)  Make provision for the children to be represented in such proceedings.
  • (d)  Provide information, advice and other support for the children and their families.

11.  In the interests of those who seek access to the family courts, these statutory duties should be conscientiously observed.

12.  Regrettably, it appears that these duties are not now being fully observed -within the spirit of the legislation if not the letter. We operate at present under the President's Interim Guidance (which has been in place for one year and issued in accordance with the relevant statutory agency and Government Department); this established an important and laudable framework for achieving necessary improvements for service delivery, but the FLBA is concerned that this pragmatic measure - necessary as a short term solution to the current difficulties - is diluting or compromising the requirements of statute and the proper expectations of those using the family courts.

13.  The shortage of CAFCASS frontline workers has caused many children from vulnerable families to be unrepresented for long periods in cases in which the most fundamental decisions are being made about them - including whether they remain living (temporarily or permanently) within their natural families. The introduction of a "duty guardian" system brought with it the reduction in continuity of case oversight, and frequently only superficial "duty advice" at the start of proceedings when critical decisions often have to be made about whether children are removed from their home. This is not an acceptable arrangement for the most vulnerable group of children in our society. They are entitled to, indeed they need, independent expert, experienced and continuous representation from the outset. The "duty" scheme does not provide effective representation for children in accordance with the statutory duties - particularly at a time when critical decisions are being made about whether children should be removed from home at the start of proceedings.

14.  Decisions made at the outset of a case often determine the future course of the proceedings; this is when issues of child protection are in sharp focus. In this respect, it is our view that CAFCASS is barely making adequate "provision for the children to be represented in such proceedings", and, by virtue of the lack of experienced front-line personnel, the organisation in our view is not able confidently to "provide information, advice and other support for the children and their families" in all cases in a consistent way (see CJCSA above).

15.  The shortage of frontline workers leads to delays in the preparation of reports in private law proceedings; this of course also has the effect of prolonging court proceedings, often exacerbating the issues which have caused the parties to seek relief from the court.

16.  For a helpful review of the effect of CAFCASS on the engagement of the parents in private law court proceedings, reference can usefully be made to Joan Hunt's recently published work on "Parental Perspectives on the Family Justice System" (May 2010). There is apparently a wide variation in the experiences of CAFCASS by those parents using the system, but it is notable that:

The strongest negative theme is concern about the thoroughness of the investigation process in private law cases. Even the Cafcass Client Satisfaction study (BMRB, 2004), which typically reports more positive findings than other studies, found that only 55% of respondents thought that Cafcass was sufficiently thorough and spent enough time getting to know their situation, with 41% being dissatisfied about this.

And concludes

the fact remains that a substantial proportion of clients are not satisfied with at least some aspect of their involvement with the agency, even if others view their experience much more positively.

The impact on court proceedings and access to justice of recent and proposed changes to legal aid

17.  We expect that many (if not all) of the submissions which the Justice Committee receives will comment on the fact that the Family Justice System is already under considerable stress; it is our view that sooner or later something will "give".

18.  The morale of the legal profession - long beleaguered by challenges to, and erosion of, publicly funded fees - has been (and remains) at a low ebb. In this respect, we highlight two significant areas (FAS and LSC tendering) under the general introduction of "access to justice".

19.  Access to Justice: Years of confrontation with the LSC has worn down the spirit of the dedicated family practitioner - solicitor and barrister alike. Many have consequently left the profession. The 2010 LSC civil bid round adds significantly to the difficulties and pressures on the professions. It is deeply regrettable that the 2010 civil bid round so publicly resulted in unintended consequences which have direct implications for access to justice.

20.  It is vital that those who need access to justice are able to obtain access to justice. That means effective and reasonable access to competent lawyers who are representative of the community they seek to serve. Repeated and protracted consultations on legal aid funding for family work (which have disproportionate impacts on women practitioners and on those of black and minority ethnic ("BME") origin) in recent years have left the legal profession - barristers and solicitors - bruised and disillusioned. Make no mistake - lawyers do not engage in publicly funded family work to get rich. They are involved in the work because it is stimulating and professionally rewarding. But practitioners need to ensure that they are economically viable; youngsters joining the profession soon realise the difficulties of making a living from publicly funded work and leave (the Bar Council reports its highest "departures" from the Bar in the first seven years), and experienced practitioners realise that it is no longer financially viable to continue with the work. The next generation of practitioners, and the experience of the current practitioners is lost. If experienced practitioners move away from family work there will be delays in proceedings, longer and less focussed hearings in court, a higher incidence of litigants in person and a greater likelihood of appeals because of inadequate representation at first instance. Furthermore, because of the disproportionate effect of changes in funding family law work on women and BME practitioners, progress on diversifying the legal profession and, consequently, the judiciary of the future is also affected.

21.  Family Advocacy Scheme: A survey of family barristers, conducted by the independent King's Institute for the Study of Public Policy (King's College, London) in 2008 (before the last round of legal aid fee cuts, and the creation of the Family Advocacy Scheme), found that the median comparable salary of barristers practising in family law was approximately £66,000 a year. A quarter of family barristers had a comparable salary lower than £44,000 a year. These figures include no provision for chambers expenses, sick leave, annual leave, or employers' pension contributions. The median number of hours worked was 46, with a quarter of barristers working more than 56 hours a week. This follows many years of training and qualification entering the profession with often significant debts.

22.  It remains to be seen whether the cohort of dedicated, experienced, practitioners at the Family Bar continue in practice once the Family Advocacy Scheme (due to be implemented on 15 November 2010) governs their remuneration for publicly funded work.

23.  Civil Bid Round 2010; The results of the recent civil bid for family contracts have caused widespread and understandable concern. We acknowledge that, at the time of writing, the appeals and verification process is not yet complete (and the judicial review proceedings are ongoing), but consider it right to highlight our deep concern that the awards of contracts have opened up geographic "deserts" where litigants will struggle to find appropriately expert specialist family lawyers. Although it was stated by Carolyn Regan (then Chief Executive LSC: January 2010) that "it is not our intention that the tender round should significantly reduce the provider base", that has undoubtedly been the consequence. There are estimated to be over 800 firms who were previously contracted to carry out family law and/or housing law work but who have been refused a contract to continue. The reduction in the number and diversity of providers both in the short and long term will, we fear, have significant implications for access to justice in the future.

24.  Of further concern, it appears on the information currently available that many experienced and specialist lawyers have not been successful in the contract bids.

25.  It is reasonably plain that the family justice system will experience further stress if litigants are unable to access lawyers; delays in court proceedings are only likely to become longer if the cases are being handled by inexperienced lawyers. While it is not possible or appropriate to comment on individual cases, there is legitimate cause for concern that the legal system is going to be considerably disadvantaged by the absence of many of its current key players.

The role, operation and resourcing of mediation and other methods in resolving matters before they reach court

26.  The FLBA supports the use of mediation in appropriate cases.

27.  Research reveals[76] that, when separating parents were asked to suggest "one good thing" about mediation

"the main theme to emerge was having a structured, managed, and fair opportunity to establish communication and reach agreement. Other themes were the value of having an unbiased person dedicated to achieving a workable set of agreed arrangements and the role of conciliation in encouraging the parties to focus on the child's interests".

28.  The FLBA believes that efforts should always be made to try to achieve an agreed/mediated outcome in appropriate cases; we recognize all too clearly that long, drawn out and acrimonious litigation can adversely impact on the long-term well-being of children and diminish a family's financial assets.

29.  However, as research has shown, it is vital for the Government to recognize that mediation will only be appropriate for partners in equal relationships which are sufficiently amicable for productive discussions to take place. Lengthy unproductive mediation can run contrary to a family's interests - prolonging the disputes, and raising tensions.

30.  There is no room for mediation in the public law field; however, the FLBA supports the endeavours of professionals, including the Family Rights Group, to promote Family Group Conferencing.

Confidentiality and openness in family courts, including the impact of the recent changes in the Children, Schools and Families Act 2010

31.  The FLBA has long supported the principle of greater transparency and accountability in the family courts and specifically supports judicially controlled access to the courts by family members, persons requested to attend by the parties, and the media. It is vital that the public knows and understands what happens in the Family Courts.

32.  Moreover, there is much in the system which is good and which the public ought to know about. A transparent justice system is one which is more likely to command the confidence of the users, and the public.

33.  However, in an endeavour to promote greater transparency in the working of the family courts, it is vital that the very people whom the courts are there to protect, namely the children and other vulnerable people, are not themselves compromised by the steps which are taken to promote transparency. Within the last 18 months, we have seen the reform of the Family Proceedings Rules and the enactment of the Children Schools and Families Act 2010. We regret that these changes to the law have been undertaken without sufficiently detailed or coherent consultation,[77] there has been scant regard paid to the views of children and young people, and little if any attention paid to Article 12 of the United Nations Convention on the Rights of the Child (children should have a say on decisions that affect their lives) and article 43 (the law should protect children's private, family and home life). It is critical that these rights are adhered to so that children's rights are not breached when a decision is reached on the rules surrounding media access to family court proceedings.

34.  It is regrettable that the opportunity to rationalise the law relating to reporting restrictions and prohibitions was lost; the regime under the CSFA 2010 (together with the other pieces of legislation) continue to represent an ill-fitting jigsaw of statutory pieces. The MoJ has failed to deliver what it sought to achieve - to simplify the legislation "so that it is readily accessible and easily understood" ("Family Justice in view").

35.  The FLBA is deeply concerned that any relaxation of the rules on publishing "sensitive personal information" in the CSFA 2010 will increase yet further the likelihood of identification of children and families in press reporting.

36.  The enabling clauses in the Act will allow Government to introduce measures which would move the family jurisdiction in England further than any other similar jurisdiction in relation to media access and reporting. Significant change would be introduced without proper public consultation. Schedule 2 to the Act effectively removes the additional layer of protection afforded to sensitive personal information, and should be widely consulted on before it is brought into force.

37.  It is vital that any review carefully considers the views of children and young people. It is to be noted that the research conducted by Julia Brophy for 11 Million concluded:[78]

"It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge's ability to make difficult and often life changing decisions in the child's best interests".[79]

38.  It is important that the independent review carefully considers the extent to which the current relaxation of the rules may have deterred potential applicants from engaging with the family court process. Respondents to consultations on this issue in the past have highlighted the difficulties of potential litigants from some BME communities, particularly South Asian, some African and/or communities with evangelical or fundamentalist religious beliefs, in seeking access to the courts. In their response to earlier consultation, Women's Aid argued that, "in cases where domestic violence is identified as an issue such an eventuality creates a further opportunity for a perpetrator to threaten talking to the media to maintain control of a victim and will in some cases deter a victim from accessing the family courts". Litigants may feel inhibited by the social stigmas and shame about the breakdown of the family or abuse they have suffered, especially victims of domestic violence, and in particular those from Black and Asian ethnic minority communities where shame and "honour" are strong deterrents. The potential presence of the media in the courts may dissuade those from accessing justice.

39.  The FLBA supports the current pilot for providing anonymised judgments in family cases to improve public understanding of how, and why, the family courts make the difficult decisions that the law requires of them; it supports the provision of age-appropriate summaries of judicial decisions to children who have been the subject of decisions in family courts as soon as possible after the conclusion of their case; and the availability of full transcripts of judgments to them on reaching adulthood. It is vital that financial and human resources are invested in order to allow the scheme to be properly tested in the pilot. The Ministry of Justice has yet to evaluate the pilots. Lack of resources delayed their start, may also limit their effectiveness and any real likelihood that they will be rolled out nationally.

40.  We make one final point. By opening up the Family Courts the media will see a system under pressure. It will be able to witness the failures of child protection such as those graphically and tragically exposed by the death of Baby Peter; it will be able to survey the diminishing capacity of the Courts to deal with an ever increasing volume of the most serious and complex cases in a timely fashion - stretched now to breaking point. It may assess for itself the spiralling costs of private ancillary relief proceedings; it will be able to gauge whether the courts are succeeding in truly gaining access to the voice of the children who are the subjects of the proceedings.

41.  The media will also be able to observe a family justice system driven by a dedicated and hard-working cohort of legal practitioners, experts and specialist judges. At a time when the provision, and funding, of specialist legal services is in jeopardy, the media may, ironically, be able to assess the adverse impact of those proposals on the ready supply of experienced lawyers on both sides of the profession to commit to this difficult work, and the knock-on effect of the reduction of that supply.

September 2010



74   Source: Office for National Statistics Back

75   Coleridge J: Resolution Conference 4.4.08 Back

76   Ref: Joan Hunt "Parental Perspectives on Family Justice System" (May 2010) Back

77   The consultation papers issued by the MoJ in preparation for the law change proposed radically different solutions. Back

78   The Views of children and Young People regarding Media Access: March 2010 Back

79   Almost all the children and young people interviewed (96%) said once children are told a reporter might be in court they will be unwilling or less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feelings Back


 
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