Written evidence from the Ministry of
Justice (FC 43)
THE OPERATION OF THE FAMILY COURTS
EXECUTIVE SUMMARY
1. The Committee's inquiry has been established
at a time of great potential change to the way family justice
in England and Wales is delivered. Rather than continuing to conduct
piecemeal procedural change, the Government believes that it is
time for a whole system analysis of the Family Justice System.
This will enable us to pursue both radical reform and maximise
efficiency savings; improving services for the citizen whilst
alleviating pressure on service providers.
2. To achieve this transformation, the Ministry
of Justice (MoJ) and Department for Education (DfE) are jointly
sponsoring a review of the Family Justice System, chaired by David
Norgrove. This is the first comprehensive review since the introduction
of the Children Act 1989 and is expected to deliver wide-ranging
recommendations for reform in 2011.
3. Whilst this memorandum sets out the Government's
views on the areas highlighted by the Committee, it should very
much be seen in the context that significant system change is
to follow once the Family Justice Review has delivered its final
recommendations. Depending on the nature of the Review's recommendations,
it is likely that any subsequent reform would be supported by
Primary Legislation, in which we would of course expect the Committee
to take a close interest.
THE ROLE,
IMPACT AND
SPONSORSHIP OF
CAFCASS
4. Cafcass was initially established in 2001
as a Non-Departmental Public Body of the then Lord Chancellor's
Department. Responsibility for Cafcass and related aspects of
family law passed to the then Department for Education and Skills
in 2003, where it remains today. Cafcass' role is to provide social
work input to cases in the family courts and its funding in the
current financial year is £138.2 million (including a one-off
allocation of £10 million to increase efficiency and reduce
backlogs). The DfE also has responsibility for children's issues
in family law, aside from the detailed court processes on which
MoJ leads. We anticipate that the Family Justice Review will make
recommendations on the sponsorship of these areas.
5. Cafcass's performance is currently being affected
by the fact that demand for both public and private family law
proceedings has increased sharply in the last 18 months, and remains
at high levels. Figures from Cafcass indicate that the total number
of care applications in 2009-10 was 34% higher than the total
for 2008-09 and March 2010 data indicates that the average public
law case duration is 49 weeks.
6. Similarly, Cafcass figures show that, in the
year to March 2010, they received 44,722 private law case requests—an
increase in demand of around 16.2%[110]
from the previous year. This increase in demand is putting pressure
on all parts of the family justice system and has impacted on
Cafcass's capacity to manage its workload effectively and efficiently.
7. On 28 July 2010, NAO published a report[111]
on Cafcass which found that it could have reacted more quickly
and cost effectively to the increase in family law proceedings
"had management made more and faster progress in resolving
the organisational challenges they were aware of prior to November
2008." It also stated that, "Cafcass […]
needs to improve the planning and communication of the changes,
and overcome continuing difficulties with management information,
IT systems, and in engaging all staff".
8. However, the NAO recognised at the same time
that Cafcass' management could not have been expected to recognise
earlier than they did that the increase in care demand after November
2008 would be sustained. The report demonstrates that Cafcass
is an improving organisation, albeit one which still faces the
challenge of a rising workload and acknowledges that Cafcass is
now implementing changes that should allow it to manage future
demand.
9. In its conclusions, the report acknowledges
that the DfE's monitoring of Cafcass was adequate and recommends
that the Government:
(a) should consider whether it requires additional,
formal indicators to oversee Cafcass to add transparency to existing
monitoring; and
(b) request an assessment of Cafcass' data accuracy.
10. Both of these recommendations are now in
hand.
11. The NAO review drew on the DfE's own review
of Cafcass' capability and performance, which was commissioned
by the Accounting Officer in summer 2009. That review showed that
while Cafcass had in hand plans that would improve the service's
effectiveness and its ability to respond, these needed to be stepped
up if the service were to respond to the significant increase
in demand it faced.
12. In response to this, DfE made available an
additional £10 million to Cafcass in the current financial
year to enable it to improve its operational efficiency, as well
as tackling practice issues to enable front line staff to deliver
safe and effective practice within resource constraints. This
funding is intended to support Cafcass in tackling current backlogs
through more efficient working practices, to protect the welfare
of all children in family proceedings and to ensure that the best
interests of these children remain at the heart of proceedings.
13. In parallel with these internal changes,
Cafcass has been working closely with the family judiciary under
the umbrella of the President's Interim Guidance issued in July
2009 to develop local agreements to reduce backlogs and build
productive ways of working. The President has proposed in his
recent letter to the family judiciary that such successful local
arrangements should continue under the new arrangements which
will come in to place from this September.
14. The Family Justice Review is currently examining
what reforms should be made to the family justice system to ensure
that it works for the benefit of all children and families involved
in proceedings. The Government will therefore be looking at the
role and sponsorship of Cafcass as part of its consideration of
the Family Justice Review's final recommendations for the overall
reform of the system.
THE IMPACT
OF LEGAL
AID CHANGES
15. The Committee's inquiry has also come at
a time of significant likely change to the delivery of legal aid.
The Coalition Government committed in its programme of work for
the next five years to consider the operation of legal aid, and
proposals for reform are due to be published for consultation
in the autumn. In its consideration of the legal aid system, which
remains one of the most expensive in the world, where expenditure
has grown out of all proportion from its original conception,
where many issues that could be better resolved between the parties
are litigated, and where as in other areas we have inherited significant
financial pressures, the Government is looking at how it can increase
efficiency, whilst ensuring that public funding remains available
for those who most need support to secure access to justice. To
achieve this we are taking a fresh look at existing thinking on
legal aid, as well as considering some new ideas, and a range
of options are being developed to provide a coherent package of
proposals for reform.
16. With regard to the existing provision of
legal aid, the Legal Services Commission (LSC), have recently
announced the results of their recent tender and awarded new civil
legal aid contracts to solicitors and not for profit agencies,
including services offered in family matters.. The intention of
the new contract bid round has been to focus on ensuring quality-assured
advice where clients need it.
17. As a result of this refocusing, and as a
result of the large volumes of work that bidders tendered for,
there has been a reduction in the number of providers awarded
family contracts—although there has not been a significant
reduction in the amount of work available under contract. Subject
to the appeals and verification process currently underway, the
total number of providers will be reduced from 2,470 to around
1,400. The criteria used meant that only those providers with
the necessary expertise, and who had passed stringent quality
assessment criteria, were awarded contracts. This means that work
will be redistributed amongst fewer suppliers, but clients will
continue to receive a service, often with access to increased
expertise. As part of the procurement process, however, the LSC
has also ensured that there will be at least five providers of
family services in each procurement area to help avoid conflicts
of interest and ensure adequate coverage.
18. The process of the bid round has been challenged
by the Law Society in a judicial review, which the LSC are vigorously
defending, However, the LSC have agreed a one month delay to the
start of the new contracts (now commencing on 15 November 2010)
to allow time for this litigation process to be resolved, and
are conducting a review of the provisional award process with
stakeholders to discuss any concerns they have. The LSC are continuing
with their process of verifying the capacity of successful bidders,
and are focussing on a small number of areas where, notwithstanding
the presence of at least five providers, there might appear to
be some initial cause for concern. As a result of this, and the
appeal process, the final number of contracts awarded is expected
to increase in some areas.
19. A new harmonised Family Advocacy Scheme,
which covers payments for public and private family law advocacy
and which will be introduced as part of the new contracts in November
2010. The harmonised scheme will pay the same fees to both solicitor-advocates
and barristers for the same work, resulting in a fairer system
of remuneration.
20. We anticipate that, as a result of the proposals
to be put forward in the autumn to reform Legal Aid, and subject
to the results of consultation on these, there may well be further
changes in the provision of legal aid for Family cases.
THE ROLE,
OPERATION AND
RESOURCING OF
MEDIATION AND
OTHER ALTERNATIVE
DISPUTE RESOLUTION
(ADR) MECHANISMS
21. The government believes that ADR services,
including mediation, have a critical part to play in reforming
how the Family Justice System operates, and we believe that options
to extend the role such services play in helping resolve family
disputes will be an important focus of the Family Justice Review.
22. We know that long, drawn out and acrimonious
court cases can adversely impact on the long-term well-being of
children and diminish a family's financial assets. In such circumstances,
mediation can often represent the simplest, cheapest, fastest
and least acrimonious way of resolving problems.
23. As a result, and as part of its commitment
to Transform Justice, the MoJ has already taken forward work to
lay the foundations for encouraging an increase in the awareness,
and use of, mediation. To achieve this, the MoJ, in partnership
with the LSC, is in the process of taking forward reforms to restrict
the number of exemptions available to solicitors to exclude clients
from family mediation assessment meetings.
24. Since the requirement to consider mediation
was made mandatory for the legally aided sector in 1997, the number
of publicly funded mediations has risen year on year from under
500 to almost 14,500 in 2009. This clearly indicates that by improving
knowledge about mediation the take up of these services increases.
25. We also know that mediation, when used, works.
The success rate of publicly funded mediations now stands at 70%
(with full success at over 60%[112]),
which, if replicated for those privately funded individuals currently
unaware of this service, could result in a significant fall in
the number of private family law cases taken to court. The Family
Justice System should treat everyone equally, no matter whether
they are privately or publicly funded and the usage of mediation
needs to be increased across both privately and publically funded
cases. We are currently considering how to encourage more people
to become aware of the benefits through mediation information
assessments.
26. The LSC currently have 187 family mediation
contracts across England and Wales and these organisations offer
mediation services across over 750 locations. In addition, the
indication is that the number of family mediation contracts will
increase later this year as a result of the forthcoming results
from the LSC tender for this work. The MoJ is also facilitating
greater collaborative working across the family mediation provider
community and is working closely with the Family Mediation Council
in particular to identify proportionate ways to ensure consistency
across the present system of accreditation. Working collectively,
we are also looking to ensure that there is the capacity to meet
the potential increase in demand that people receive a consistently
high quality service.
27. Looking to the future we also know that citizens
can often find more directive conciliation services helpful in
resolving their problems, where binding judgements are utilised
to set out a final agreement.
28. Overall, we believe that couples who are
privately funded and currently come to court regarding either
disputes concerning money or issues related to children following
separation, could take a greater role in resolving their disagreement
themselves. Such an approach would help ensure that the limited
resources available in the Family Justice System are focused on
the most vulnerable and those cases that genuinely require the
intervention of the court. Given this, there could be considerable
benefit in establishing a more coherent and accessible service
for mediation or conciliation. We anticipate the Family Justice
Review will make recommendations on this area.
CONFIDENTIALITY AND
OPENNESS
29. The Government is committed to extending
transparency to every area of public life. It is important that
the Family Justice System, which makes major decisions about the
lives of children and their families, is properly understood and
commands public confidence. At the same time, there is a clear
need to protect the privacy of vulnerable children and adults
involved in cases in the family courts.
30. The predecessor to the Justice Committee,
the Constitutional Affairs Select Committee (CASC), conducted
an inquiry into the operation of the family courts system in 2005.
As part of the inquiry, the Committee suggested that lack of transparency
had contributed to dissatisfaction with the Family Justice System.
It recommended that to increase transparency:
— the
press and public should be allowed into the family courts, albeit
under appropriate reporting restrictions and subject to the judge's
discretion to exclude the public;
— anonymised
judgments should normally be delivered in public, unless the judge
in question specifically chooses to make an order to the contrary;
and
— restrictions on parents
discussing their cases should be removed, again, unless a specific
order is made to the contrary.
31. Following the 2005 CASC report and two subsequent
public consultations, a number of steps were taken with the aim
of achieving a more open family justice system.
32. On 27 April 2009, new court rules were introduced
that gave accredited members of the media the right to attend
most family proceedings, subject to court discretion to exclude
them in certain circumstances, with existing reporting restrictions
remaining in place. Separate court rules also came into force
on the same day, which allowed parties and legal representatives
to disclose information relating to proceedings for specified
purposes without the permission of the court. These new rules
focused on the purpose of disclosure rather than the type of information
and to whom it would be disclosed.
33. The provisions in the Children, Schools and
Families Act 2010, to which the Committee refers in its call for
evidence, have not yet been commenced.
34. In recognition of the significance of these
reforms, and the range of strongly held views on this sensitive
area, the Government wants to look closely at the changes the
Act would introduce, as well as examine in detail the financial
implications of this new legislation, before any final decision
on implementation is taken.
CONCLUSION
35. The Family Justice System in England and
Wales is undergoing a period of radical reform, which the Government
is committed to driving forward in a manner that ensures efficiency
and value for money for the taxpayer, whilst delivering proportionate
and effective justice for citizens. At the same time, we believe
that the needs of children should be central to any reform programme
and are working hard to ensure that this is the case by listening
carefully to the experiences of those that have been through the
system.
36. The Government welcomes the Committee's consideration
of this area during what is a significant time of change and looks
forward to considering its final report alongside the recommendations
of the Family Justice Review next year.
September 2010
110 For Cafcass figures see their annual report and
accounts for 2009/10 at-http://www.cafcass.gov.uk/PDF/Cafcass%20Annual%20Report%20and%20Accounts%202009-10%20web%20pdf.pdf Back
111
See "Cafcass's response to increased demand for its services-
available on the NAO website at" http://www.nao.org.uk/publications/1011/cafcass.aspx Back
112
Figures are from LSC data based on Mediation Provider monthly
submissions on publicly funded mediation undertaken during 2009-10,
full success involves those cases where no further court involvement
is required. Partial success relates to where mediation resolves
a significant aspect (or aspects) of a case before it returns
to the Court process. Back
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