Martin Partington: Spotlight on the Justice System

In the 2011-2012 edition of the book (pp 182-3), I summarise the recommendations of the Norgrove on reforms to the family justice system, in particular to reduce the unacceptable delays current blighting the system.

The Government’s response was published in Feb 2012, and its main conclusions have been noted in this blog.

There have been two recent further developments.

First, the creation of the proposed Family Justice Board has been taken a step forward with the appointment of its first Chair. Interestingly, the appointee is David Norgrove, the author of the original report. This makes sense – he clearly has a vision of how the family justice system should develop, and his appointment should allow him to steer the recommendations he made for the reform of the system.

For the annoucement, see http://www.justice.gov.uk/news/features/family-justice-board-chair-appointed

The second development comes from the judiciary. Following publication of the Norgrove report, Mr Justice Ryder was asked to lead a programme of consultation and to make recommendations for the ways in which judicial reform would assist the delivery of Norgrove’s objectives. At the end of July 2012, the Ryder Report was published.

He states that reforms will come in two stages. Stage 1 will focus on the better management of the court resources that are dealing with family matters. These measures are designed to ensure that the  proposals currently before Parliament (in the Crime and Courts Bill) for the creation of a unified Family Court are properly implemented. He hopes that these administrative changes will be in place by mid-2013.

Stage 2 of the reforms will be based on principles set out in the Children and Families Bill, which is likely to receive Parliamentary approval in 2014. It is likely that the Bill that the second Bill will deal with the Government’s published desire to limit care cases to 26 weeks save in judicially excepted circumstances, to describe a more focused scrutiny of the final care plan,  extend interim and supervision care orders without monthly renewal for six months and implement the Government’s proposals in private law relating to
shared parenting, child arrangement orders and contact enforcement.

Ryder argues that  stage 2 will require judges to take greater responsibility for case management to reduce the delays that Norgrove so criticised.

Ryder stresses that for both reform stages there will need to be specialist judicial training to ensure that judges fully understand their new powers and responsibilities.

Full details of Mr Justice Ryder’s recommendations are at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/ryderj_recommendations_final.pdf

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed 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).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

The Government has published its response to the Norgrove report on reforms needed to the Family Justice system.
The response is, broadly, to accept Norgrove’s recommendations. The Press release states that the main focus will be on the following matters:

1. Speeding up care and adoption cases by reforming the public law system and increasing transparency. The Government has already begun to publish data on. It will introduce legislation at the earliest opportunity to enable a six month time limit to be set and wherever possible it expects cases to be completed more quickly, while retaining the flexibility to extend complex cases where this is genuinely in the children’s interest.

2. Simplifying the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. The Government will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child. The Government estimates that it will spend an extra £10m a year on legal aid for family mediation taking the total to £25m per year (although it has placed no upper limit on this figure). It will also examine how to give the courts more robust enforcement tools to combat failure to comply with judgments.

3. A  new family justice board will be established to drive culture change and better cross-system.It will be accountable to ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.

On the most contentious issue, whether there should be a statutory presumption in favour of shared parenting, the Government appears to have accepted that this specific idea, advocated by a number of people, should not be pursued. However, the Government has decided that it should not leave the current law as it is. Its response, again as reported in the press release is:

• The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.
• The Government also accepts the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. It will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. The Government will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.

Given that the current role of the court is to ensure that the interests of thye child are paramount, it is not entirely clear what the ‘legislative statement’ will be able to achieve. However, no doubt further announcements will be made in due course.

The press release can be found at http://www.justice.gov.uk/news/press-releases/moj/pressrelease060212a.htm.

The full government response can be seen at https://www.education.gov.uk/publications/eOrderingDownload/CM-8273.pdf

Major proposals for the reform of the family justice system are recommended in a detailed report of the panel chaired by David Norgrove. It was particularly shocked by the current delays in the system. It argues that everyone involved in the family justice system should consider how their own functioning might be improved.

In summary, the review recommends:

Changes to the system

• The creation of a new Family Justice Service to make sure agencies and professionals work together to make positive improvements in the system for children and families.
• More judges who are specialists in family law to hear cases from start to finish to ensure consistency and confidence in the system
• A simplified court structure making it easier for people using the courts to know where to go
• More child focus and better training for professionals to make sure children’s views are heard.

Changes to public law ( which deals with the protection of children and taking them into care) to deliver more quickly for children:

• A six month time limit for all cases, save in exceptional circumstances
• Less reliance on unnecessary expert witnesses and reports
• Refocusing the courts on the core issue of determining whether the child should go into care.

Changes to private law (arrangements about children and money following separation and divorce), to create a simpler service for families who are separating, aimed at helping them and their children focus on reaching a safe, joint agreement, if possible, without going to court:

• A single online and phone help service to make it simpler for people to decide the most appropriate way forward and increase clarity of understanding
• Use of Parenting Agreements and a new ‘child arrangements order’ to bring together arrangements for children’s care after separation, focusing on the child rather than ‘contact’ and ‘residence’
• Increased provision of mediation to prevent cases going to court unnecessarily.

The report also recommended significant investment in IT to improve the efficiency of court processes.

One controversial issue which the review does not pursue was the idea that there should be a legal presumption in favour of ‘shared parenting’. Evidence from countries where this had been introduced suggested that such a legal presumption did not ensure that the best interests of the child – the fundamental legal test in all children’s cases – were always taken into account as fully as they should be.

The Government’s detailed response to the report will be available in due course. There are significant tensions between what is recommended here and the changes proposed to the legal aid scheme which may affect the extent to which the Government will actually adopt the recommendations.

For further information: see http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease031111a.htm

The full report is available at http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-final-report.pdf

On 6 April 2011, the Family Proceedings Rules 2010 came into effect. As a result the rules the supporting Practice Directions set out a comprehensive framework for the family jurisdiction. For the first time, family proceedings courts (i.e. magistrates’ courts dealing with family matters) will operate under the same set of rules as the High Court and the county court.

Sir Nicholas Wall, President of the Family Division, has written: “This will serve to improve even further the relationship between the family proceedings court and the county court.

The new framework, modelled on the approach to the Civil Procedure Rules, will contribute to a common understanding and approach across all three tiers of family court, resulting in a more streamlined system to serve court users well.”

For further details go to http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/family/frontmatter/fpr_introduction.htm

On 31 March 2011, the Review of Family Justice published its interim report, setting out a large number of recommendations for changing current procedures and practices relating in particular to decisions on children.

The interim reports reasserts the fundamental principle of the Children Act 1989, that decisions must be in the ‘best interests of the child’. But the Review argues that the present system means inordinate delay – ‘shocking’ is the word they use; is very expensive both for the state and the individual families concerned; and often leads to increased conflict within the family.

The headline recommendations, which are now out for public consultation (until the end of June 2011), are set out in the following (extracted from the MoJ Press Release):

A simpler system to deliver an improved service:

• A new Family Justice Service led by a National Family Justice Board, drawing the key functions of  existing agencies together and seeing children and families all the way through the justice system with greater support and more efficiently.
• Local Family Justice Boards to replace the existing plethora of arrangements.
• A unified family court system, streamlining services to replace the current three-tier system, creating more flexibility for family hearings.
• Specialist judges who hear cases from start to finish to ensure consistency and confidence in the system.
• Investment in systems to manage cases and to give information about how family justice operates.
• Court social work services should form part of the Family Justice Service, subsuming the role currently performed by Cafcass (Cafcass Cymru would continue to provide these services in Wales as this is a devolved function).

Public law (protecting children and taking them into care) procedures that deliver more quickly for children:

• The welfare of the child should remain paramount in law, as at present. Courts should focus on the core issues that are most important to the welfare of the children.
• A bespoke timetable for resolving each child’s situation should be established within a maximum allowed time limit for all cases to minimise the damage caused by uncertainty.
• Less reliance on unnecessary expert reports which can cause delay, when these are not in the best interests of the child.
• Measures to simplify processes and help manage cases better, including support for judges to manage cases more tightly.

In Private law cases, a simpler service for families which are separating, aimed at helping them to focus on their children and to reach agreement, if possible without going to court:

• A statement inserted into law to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.
• use of Parenting Agreements to bring together arrangements for children’s care after separation, focusing on where the child spends time rather than ‘contact’ and ‘residence’ and reinforcing the importance of a relationship with grandparents and other relatives and friends who the child values.
• a single online and phone help point to make it simple for people to decide the most appropriate way forward.
• assessment for mediation followed by access to Separated Parents Information Programmes and dispute resolution to help separating parents understand the impact of conflict on the children and to reach agreement.

a court process that supports cases where there are serious welfare concerns and allows for cases to be dealt with according to complexity.

See http://www.justice.gov.uk/news/newsrelease310311a.htm

The full documentation is at http://www.justice.gov.uk/publications/family-justice-review.htm

So, the Coalition Government has now published its decisions on what public bodies are to be kept, what are to go. Here I comment on the decisions through the specific lens of the English Legal System.

The two highest profile casualties of the cull are the Youth Justice Board and the Administrative Justice and Tribunals Council.

The YJB did have a bit of a reputation for clashing with Government on issues relating to young offenders and how they should be treated in the criminal justice system; presumably  policy will now be taken into the Ministry of Justice. The justification is that this change is wrapped up in a wider review of criminal justice. My view is that the independent voice of the Board will be missed and that Government will still need expert external input into policy making. We shall see.

The Administrative Justice and Tribunals Council, created out of the former Council on Tribunals, had a broad remit to keep administrative justice under review. Given the importance of getting the relationship between the citizen and the state right, ensuring that government operates according to principles of good administration is vital. The Council played a key role in ensuring that different agencies communicated with each other. This facilitative role was particularly important and I think it will be missed.

For me, the most intriguing announcement is that  the whole edifice of independent judicial appointments, created by the previous government, is stated to be under consideration. The new process has not been welcomed by many lawyers but has made judicial appointments more transparent – need to watch this space on this one!

Similarly the future of the Office of the Children’s Commissioner is also under review – an announcement is expected in November 2010.

The public bodies review has usefully tidied up a number of tribunals and brought them into the Tribunals Service. The Residential Property Tribunal Service and the Valuation Tribunal Service, which in my view should always have been in the Tribunals Service, are now to be incorporated. A number of other tribunals are still under consideration for inclusion in the Tribunals service, including the ever popular Plant Varieties and Seeds Tribunal.

The Parole Board has been spared, but its future status and functions are still under review.

The Victims Commissioner is retained, but the Victim’s  Advisory Panel is abolished.

The published list confirms the abolition of a number of bodies which had been announced earlier: these include HM Inspectorate of Court Administration; the Legal Services Commission (not to be confused with the Legal Services Board, which is retained); the Legal Services Ombudsman; and the National Policing Improvement Agency.

On balance, my view is that the legal institutional landscape has changed less than might have been expected. There has actually been some sensible rationalization, particularly in the tribunals world. But I think that the Youth Justice and Administrative Justice worlds have been weakened by the changes.

Full details at http://www.number10.gov.uk/news/latest-news/2010/10/public-body-review-published-55604

Two recent news items have considered the use of mediation as a form of Alternative Dispute resolution. In the first, Jeremy Tagg an official in the Ministry of Justice, was presented with the Lord Slynn Mediation Prize for leading a drive to see more disputes settled out of court.

He was picked as winner for his role in the development of both the National Mediation Helpline (NMH) and the HMCS Small Claims Mediation Services (SCMS).

The SCMS has conducted more than 10,000 mediations in each of the past two years and continues to receive exceptionally high levels of customer satisfaction – 98 per cent of users say they are satisfied or very satisfied with the professionalism and helpfulness of the mediators and 95 per cent say they would use the service again

The second relates to statements recently made on the Today programme by Jonathan Djangoly, Justice Minister, urging greater use of mediation in Family disputes. Some family practitioners might take issue with his assertion that family lawyers are not sufficiently aware of mediation to resolve family disputes.

Nevertheless, it is still the case that there is a lack of awareness of the potential of mediation to resolve disputes and an assumption (at least by lawyers) that it is being promoted simply to reduce costs; there is considerable evidence, however, that mediation – when properly used – promotes better outcomes for parties.

Further details on both announcements can be found on the Ministry of Justice website

Although the results of the Government’s Comprehensive Spending Review are not officially published until 20 October 2010, the widely publicized leaks of the quangos that are likely to be axed suggest there could be some significant change in the legal landscape.

Many of the bodies considered in my book are under threat: they include the Administrative Justice and Tribunals Council, the Civil Justice Council, the Family Justice Council, the Legal Services Commission, many of the Boards that look after local courts, a number of tribunals – even the future of the Law Commission is, according to reports, not secure.

For the list as published in the Daily Telegraph see: http://www.telegraph.co.uk/news/newstopics/politics/8021780/Quango-cuts-full-list-of-bodies-under-review.html