Archive for the ‘chapter 7’ Category
Revolution in the Justice system?
On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.
In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.
A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)
First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years
What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.
To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like
To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto
The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/
Family Justice Research
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014
Mediation in Family Disputes
Mediation is the Government’s preferred option for resolving family disputes. The Government has recently announced that, from 3 November 2014, the first mediation meeting will be free to both parties, so long as at least one of the parties to the dispute is in receipt of legal aid.
In addition, from January 1 2015 there will be a third stage in the government’s work to improve mediation and encourage separating couples to use it to resolve disputes. From the beginning of the New Year, the Family Mediation Council (FMC) is introducing a compulsory accreditation scheme and new professional standards which all mediators must work toward. All mediators and those working towards becoming a family mediator will be required to be registered with the FMC. The Ministry of Justice (MOJ) is funding the preparation work and costs of implementing the new standards.
These announcements follow recommendations from the Family Mediation Taskforce.
See https://www.gov.uk/government/news/free-mediation-for-more-separating-couples-begins
The report of the Family Mediation Taskforce report, published in June 2014, can be found by googling Family Mediation Taskforce.
Experts in family law cases: new practice direction
In May 2013, the Government launched a consultation on the standards that experts in family cases should have. The standards had been drawn up by the Family Justice Council. The judiciary have recently announced that these standards are now operational.
The standards include making sure that the expert:
- has knowledge appropriate to the court case,
- has been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
- is either regulated or accredited to a registered body where this is appropriate,
- has relevant qualifications and has received appropriate training, and
- complies with safeguarding requirements.
The standards were developed in partnership with the Family Justice Council.
For further details, see http://www.judiciary.gov.uk/publications/new-national-standards-for-family-court-experts/
What has happened to Legal Aid?
The big changes to the legal aid scheme, designed to cut public expenditure on legal aid, were introduced in April 2013, following enactment of LASPO 2012.
The first Annual Report of the Legal Aid Agency has now been published. This provides more information on the direct impact this has had on the amount of legally aided work that has been undertaken in the first 12 months since the Act came into effect.
In summary:
• Total acts of assistance and spend – The LAA continued to fund advice, assistance and representation for eligible individuals across England and Wales by funding 1.8 million acts of assistance overall (Civil Legal Aid and Criminal Legal Aid). [2012-13: 2.3 million]. Total net expenditure was £1,709.5 million. [2012-13: £1,916.7 million].
• Number of providers – As at 31 March 2014 the LAA held 1,435 civil and 1,519 crime contracts [March 2013:1,899 civil and 1,599 crime contracts].
• Civil Legal Aid – The LAA funded 0.50 million Civil Legal Aid acts of assistance overall [2012-13: 0.93 million, a 46% decrease in the year]. Civil Legal Aid net expenditure was £800.9 million [2012-13: £941.6 million].
• Criminal Legal Aid – The LAA funded 1.32 million Criminal Legal Aid acts of assistance [2012-13: 1.36 million, a 3% decrease in the year]. Criminal Legal Aid spend was £908.6 million [2012-13: £975.1 million].
What these figures show is the dramatic impact the cuts in Legal Aid have had on civil legally aided matters. There have been huge falls, both in the numbers of acts of assistance, and in the numbers of those with civil legal aid contracts with the Legal Aid Agency. By comparison, criminal legal aid has suffered less, though well publicised actions in particular by the Bar indicate that the fees payable for legally aided work in crime have been subject to considerable constraint.
Lawyers will of course deplore these trends. But it has to be said that there is no indication of any political will to restore funding to the legal aid scheme. This appears to be the start of a new reality, a context in which rather different forms of service delivery to the public will have to be devised.
The LAA Annual report is available at https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2013-to-2014
Family Justice: ensuring the voice of the child is heard
Family law places great emphasis on the child. Ensuring that the interests of the child are addressed is central. But how can these issues be addressed if, in the course of proceedings – whether in court or mediation – those taking decisions do not hear directly from the children who are going to be affected by those decisions?
In theory the child’s interests are represented by CAFCASS (the Children and Family Court Advisory and Support Service). But it has been recognised that however well staff in CAFCASS work, they may not always fully understand the child’s perspective. In 2006, CAFCASS established the Family Justice Young People’s Board (FJYPB) – a group of around 40 children and young people who have been through the family justice system or who have an interest in children’s rights and the family courts.
The Board has recently been developing proposals to ensure that the practice and procedure of judges and mediators gives children the opportunity to be heard directly.
In a recent speech to the FJYPB, Simon Hughes, Minister in the Ministry of Justice, announced that the Government would seek to implement proposals for all children over the age of 10 to be heard, both in couirt and in mediations. The precise details of how this will happen still need finalising, but this seems to be a step to which the President of the Family Court, CAFCASS and mediators are committed to.
For more details, see https://www.gov.uk/government/speeches/simon-hughes-speech-at-the-voice-of-the-child-conference.
See also http://www.cafcass.gov.uk/about-cafcass/how-we-are-organised/family-justice-young-peoples-board.aspx
Reforming the Justice system: creation of the Family Court
The long-awaited Family Court opened for business on 22 April 2014.
Following enactment of the Crime and Courts Act 2013, instead of family cases being divided amongst Family Proceedings Courts (as Magistrates’ Courts dealing with family matters are called), county courts and the Family Division of the High Court, there is now a single point of contact for all family matters that need resolution by courts. In practice, the judges that formerly undertook family work will continue to do so, and the buildings used for family cases will be the same. But questions of how matters are to be divided between the different types of judge will be decided by judicial administration on a practical basis. It is specifically provided that certain types of simple cases may be dealt with by magistrates sitting on their own, rather than in panels. Justices’ clerks and their assistants are also given wider powers to assist the judiciary in straightforward cases.
As you will be aware, the Children and Families Act 2014 was given Royal Assent on 13 March and a number of significant family justice reforms will be introduced from 22 April.
The reforms to the family justice system are aimed at improving the way the system functions as a whole. In particular, we want to make sure that the welfare of children is at the centre of decisions, reduce delays in proceedings, and encourage families to use court as a last resort to resolve disputes. We are:
- Placing a requirement on a person to attend a meeting to find out about mediation before they are allowed to make certain applications to the family court, for example, disputes over finances or children arrangements (unless exemptions apply – such as in cases of domestic violence).
- Moving to the use of child arrangements orders (CAOs) in place of ‘residence’ and ‘contact’ orders.
- Streamlining court processes for divorce and dissolution of a civil partnership by removing the requirement for the court to consider the arrangements for children as part of these processes.
- Introducing a 26-week time limit for completing care and supervision cases, to improve the timeliness of finding a permanent placement for children. The court will have the discretion to extend cases by up to eight weeks at a time, should that be necessary to resolve proceedings justly.
- Restricting the use of expert evidence in children (both public and private law) proceedings to that which is necessary to resolve the proceedings justly and requires courts to have regard to the impact of delay on the child when deciding whether to permit expert evidence in children proceedings and whether the court can obtain information from parties already involved;
- Reducing unnecessary administrative work, by removing the need to renew interim care orders and interim supervision orders as frequently, allowing the courts to set interim orders which are in line with the timetable for the case.
The Children and Families Act 2014 is also brought into effect on the same day. This implements the recommendations of the Norgrove Committee on Family Justice. It
- makes attendance at a meeting to find out about mediation a compulsory requirement, before any proceedings before a court can be started (save for exceptional cases, e.g. where there is domestic violence) so separating couples must consider alternatives to court battles when resolving financial matters and arrangements for child contact;
- replaces residence and contact orders with ‘child arrangements orders’ designed to encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’;
- introduces a 26 week time limit for care proceedings to further reduce the excessive delays in these cases and give greater certainty to the children involved (this can be extended by up to 8 weeks if necessary to resolve a case justly);
- streamlines the process of obtaining a divorce or dissolution of a civil partnership;
- restricts the use of expert witnesses in both private and public law children proceedings, requiring the court to consider the impact of delay on the child and whether the information could actually be obtained from parties already before the court.
The impact of cuts to legal aid are that it appears there are many more litigants in person before the courts. It remains to be seen whether, when the changes have bedded down, this remains the case.
For further information see https://www.gov.uk/government/news/family-justice-reforms-to-benefit-children; and https://www.gov.uk/government/news/major-changes-in-family-courts.
CAFCASS to come under MoJ control
Following a recommendation in the Family Justice Review, the Government announced at the beginning of November 2013 that the Children and Family Court Advisory and Support Service (Cafcass) will transfer to the Ministry of Justice in April 2014.It is currently sponsored by the Department for Education.
Cafcass looks after the interests of children involved in family court cases and helps over 145,000 children and young people who are involved in divorce or separation and care or adoption cases every year. Cafcass is the voice of the children in family courts and helps ensure that children’s welfare is put first during proceedings.
No doubt it is hoped that by bringing the service within MoJ, this will support the wider programme of reform of the family justice system.
See https://www.gov.uk/government/news/cafcass-transfer-to-the-ministry-of-justice
Experts in family cases
As part of the programme of reform of the Family Justice system, the Government has just announced a consultation on how professional standards of those giving expert testimony in family cases might be improved.
The Consultation Paper states:
‘Experts play an important role in assisting the court by providing advice on matters requiring specialist expertise outside the knowledge of the court. In family proceedings relating to children, they may come from many different professions and disciplines including doctors, nurses, psychologists and independent social workers.
‘The standards in this paper are a response to a recommendation made by the Family Justice Review that standards should be developed for expert witnesses in the family courts.’
What the paper proposes are ‘high level’ standards to which those called as experts in family cases would have to agree to. As the paper says:
‘The Ministry of Justice proposes that, in publicly funded family proceedings relating to children, solicitors may only instruct experts who meet the relevant standards. In both publicly and privately funded cases, the expectation is that parties will provide sufficient information to satisfy the court not only that an expert is needed, but also that the proposed expert meets the standards.’
The standards, which have been drawn up by the Family Justice Council, cover areas including:
- the expert’s area of competence and its relevance to the particular case;
- maintaining expertise through Continuing Professional Development activities;
- statutory registration or membership of an appropriate professional body;
- applying the standards to overseas experts;
- compliance with the Family Procedure Rules and Practice Directions;
- seeking feedback from solicitors and the courts; and
- good practice in relation to fees in publicly funded cases
The Consultation runs until 18 July 2013. The Government hopes they will become effective later in 2013.
For more detail go to https://consult.justice.gov.uk/digital-communications/expert-witnesses/consult_view
Legislation 2012-2013: end of term report
In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:
Dropped
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.
Incomplete
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.
2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.
Completed
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.
Comment
It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 