Keeping the reform of Family Justice under review – the work of the President of the Family Division
A notable development in the programme of change currently happening in the Family Justice system is the very personal attention being given to the programme by Sir James Munby, the President of the Family Court. He publishes a regular series of newsletters, which he now calls ‘The View’, setting out progress both on matters of the reform of family law, and the processes of the courts.
He clearly supports the aims and objectives of the Norgrove recommendations for change and is anxious that practice and procedures are made more efficient. He is clearly concerned about the resources available to the Family Justice system, but does not think that more resources is the answer to all the problems of the system. He wants new approaches to be developed as well.
One particular development of which he has become a strong supporter is the notion of ‘problem-solving courts’. The theory is that many families that get caught up in the care system do so because there are aspects of life style – especially alcohol and substance abuse – which result in children coming to the attention of social service departments. The argument is that if you offer a programme of support for the parent(s) who are not coping well, to change their lives, this could result in few children being brought within the case system – with all the cost that this entails.
Some years ago, Judge Nicholas Crichton established a new type of court – the Family Drug and Addiction Court (FDAC) – which sought to put these ideas into practice.
In 2015, a FDAC National Unit was created, which seeks to promote the development of these courts in different parts of the country. In its first year it had helped more than 15 such courts to come into existence.
Sir James Munby is extremely impressed with their work and a powerful advocate for their further development.
To read Sir James Munby’s newsletters/Views go to https://www.judiciary.gov.uk/publications/view-from-presidents-chambers/
To read more about the FDAC Unit go to http://fdac.org.uk/
Following a report by Robert Gordon in 2014, the Government announced in its legislative programme for 2015 that it would be published a draft bill, proposing the creation of a single Public Services Ombudsman, which would bring together the current Parliamentary ombudsman, Local Government Ombudsmen and the Health Services Ombudsman. Such a move had been made in Scotland and Wales.
No such bill has been published, nor was the proposal mentioned in the legislative programme for 2016. The Government has stated that the proposal will be brought forward in due course, but there is no indication of any timetable for this.
In the interim, a very interesting House of Commons Briefing Paper on the subject has been published which summarises many of the issues involved.
Rationalisation of the current plethora of Ombudsmen has been something that has been argued for sometime but one gets the impression that for the moment it has been kicked into the long grass and is not high on the Government’s priority list.
The Briefing note is at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7587
Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union
One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a summary of the case, and to the whole judgement.
The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.
A summary of the decision can be found by clicking on the following link:
The full judgement is at
While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.
The judges held that the Sovereignty of Parliament was the most important principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use prerogative power to trigger the start of the process of leaving the EU.
Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.
The Consultation Paper, Transforming our Justice System, has little to say on further reforms to the Family Justice system.
It has been undergoing radical change over the last few years, following publication of the report by David Norgrove and the creation of the single family court. The Government clearly wants work in progress to continue.
Progress with these reforms is kept under active review by the President of the Family Division, Sir James Munby, who now issues regular newsletters on developments – the latest is the subject of a separate blog item.
i. Streamlining procedures and encouraging a balanced approach: We areworking to simplify our procedures and put entire services online wherepossible, carefully designed to be intuitive and easy to follow. Many relativelystraightforward tribunal decisions do not require full physical hearings, so whereappropriate, judges will be making decisions based on written representations,hearings will be held over telephone or video conference and specially trainedcase officers will help cases progress through the system. All of these changeswill make the process quicker and easier to deal with for all parties involved in acase.ii. Digitising the Social Security and Child Support Tribunal: This will be one of thefirst services to be moved entirely online, with an end-to-end digital process thatwill be faster and easier to use for people that use it.iii. Simplifying panel composition: Another factor in taking a balanced, tailoredapproach to tribunal cases is making sure the panels that make decisions intribunals are designed to best suit the circumstances of the case. Most tribunalscurrently reflect historic arrangements that may be out of date and do not tailorthe expertise of the panel according to the case. We propose to revise thecurrent arrangements for setting panel composition to make sure that thatappropriate expertise is focussed on those cases that need it. We wouldwelcome views on how best to achieve this.iv. Reforming employment tribunals: The Employment Tribunals deal with a hugevolume of claims every year – c. 83,000 in 2015/16. They work on similarprinciples to many other tribunals and the civil courts, but currently have anentirely separate structure, including a specific appeals tribunal. We areconsidering whether the new approaches being adopted elsewhere in thejustice system could be applied to the employment jurisdiction.
i. Introducing a new online process for resolving claims: In line with plans across all jurisdictions, we will move more cases away from physical court rooms. Building on Lord Justice Briggs’ proposals in his Civil Court Structures Review we will create a new process to resolve many disputes entirely online, using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases. We will create a new, streamlined Rules Committee to design this new system and keep the processes simple. When hearings are required, they may be held over thetelephone or video conference, focusing court resources on the most complex and difficult cases. This will mean that cases should reach a quicker resolution.ii. Encouraging parties to resolve disputes themselves where possible: We willincrease signposting to mediation and alternative dispute resolution services tohelp people avoid court for minor disputes that would be better handled privately,without needing the court to intervene.iii. Extending the fixed recoverable costs regime: Fixed recoverable costs are legalcosts which can be recovered from the losing side by the successful party to aclaim, at a prescribed rate. (For civil claims, these are set out in the CivilProcedure Rules). We will build on measures introduced in the last Parliament forlow value personal injury claims, to limit the level of legal costs recoverable.These measures provide transparency and certainty for all parties and aredesigned to ensure that the amount of legal work done is proportionate to thevalue of the claim. We are keen to extend the fixed recoverable costs regime toas many civil cases as possible. The senior judiciary will be developing proposalson which we will then consult.iv. Civil enforcement: We will give the [county court] powers to issue attachment ofearnings orders to the High Court to create a simpler, more consistent approachto enforcement, and make sure more people can get the money they are owed.We will also commence the fixed deductions scheme (fixed table) provisions inthe Tribunals, Courts and Enforcement Act 2007 in the County Court andintroduce fixed tables in the High Court, providing transparency and certainty ofthe rate of deductions from debtors’ earnings to pay back their creditors.v. Replacing statutory declarations in county court proceedings with a witnessstatement verified by a statement of truth: We will replace outdated and currentlyinconsistent procedures, which are inconvenient for people to use and resourceintensive to administer, with a more modern digital approach but keeping strongpenalties where a statement of truth is found to be false.
i. Aligning the criminal courts: Magistrates’ courts and the Crown Court deal withdifferent levels of criminal offence, but they must work better together to provide amore efficient service. We are working with the judiciary on structural andprocedural changes that will give the senior judiciary clearer oversight of, andflexibility to manage, judicial leadership in the criminal jurisdiction. This will enablethe Crown Court and magistrates’ courts to operate more closely together –stronger leadership and alignment will improve court performance for everyoneinvolved. To support this, we will bring the structures of the courts closer byreforming existing local justice areas and making it easier to transfer cases betweenthe Crown Court and Magistrates’ Court when appropriate – starting in the rightplace will make the process simpler and easier for victims and defendants.ii. Making it easier for vulnerable and intimidated witnesses (including victims) to giveevidence: We will roll out the use of pre-trial cross-examination in Crown Courttrials, allowing vulnerable and intimidated witnesses to pre-record their cross-examination, meaning the witness does not always need to attend the trial itself. Apilot found that this procedure meant witnesses gave evidence in half the time itwould take at trial. We believe that expanding this will reduce distress for victimsand witnesses and improve their overall experience of the justice system.
i.Introducing problem solving courts: We are exploring the opportunities for problemsolving methods further with the judiciary and collecting the evidence base. We arecontinuing to trial this approach in locations across the UK.ii. Using out of court disposals: We will use out of court disposals in appropriate cases,to help change offenders’ behaviour at the earliest possible opportunity– with swiftand certain consequences for offenders who do not comply with the conditionsattached.
i. Streamlining process: We are making changes to the way cases progress throughthe criminal courts, including removing unnecessary appearances in court (such asfirst appearances in magistrates’ courts for cases which can only be tried in theCrown Court), introducing a more efficient process to allocate cases to the CrownCourt or magistrates’ courts and allowing simple decisions to be made via a newonline system.
ii. Using technology to make processes more efficient: We will increase the useof video link and telephone and video conferencing technology to makehearings easier and more convenient for all, including victims and witnessesand criminal justice system agencies. We will work with the police to hold bailhearings by video link from police stations to reduce the need for someoffenders to be held in police cells overnight. In appropriate cases offenderswill be able to plead guilty, be convicted and sentenced all on the same day bylive video link from police stations.iii. Introducing a new collaborative IT system: The Common Platform is alreadybeing developed to provide a single case management IT system for usethroughout the Crown Court and magistrates’ courts. It will provide access tocase material and information to many agencies within the criminal justicesystem as well as the defence, victims and witnesses. Many current paper andcourt-based processes will be moved online, saving time and increasingefficiency for all court users.iv. Enabling online convictions and fixed fines: For certain routine, low-levelsummary, non-imprisonable offences with no identifiable victim, we propose tointroduce a system which resolves cases entirely online. Defendants would logon to an online system to see the evidence against them before entering aplea. If they plead guilty, they can opt in to (and can always opt out of) theonline system which allows them to view the penalty, accept the convictionand penalty, and pay their fine. Cases would be resolved immediately andentirely online, without the involvement of a magistrate.
Many of these proposals build on initiatives already started. However, the suggestion for more problem solving courts is potentially quite innovative and could lead to significant change to the ways in which the criminal courts have historically operated.