Posts Tagged ‘family court’
Covid 19 and the English Legal System (14) – Family Justice
As with all parts of the English Legal system, the family justice system has had to cope with the effects of Covid-19. A new report from the Nuffield Justice Family Justice Observatory takes a fresh look at how the system has been coping – in particular with the use of remote (where both parties are not in court) and hybrid (where one party is in court) hearings. It is based on a survey of 1300 people involved in family law cases, undertaken in September 2020. It is a follow-up to their first snapshot survey undertaken in April 2020. (see https://martinpartington.com/2020/07/07/covid-19-and-the-english-legal-system-10-family-justice/)
This second survey and accompanying report shows that “most professionals (86%) felt that things were working more smoothly and some reported benefits to working remotely, for both parties and themselves.” However, “[t]hey shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely’. Nonetheless “more than three quarters (78%) felt that fairness and justice had been achieved in the cases they were involved with most or all of the time”.
When it came to how parents and relatives themselves felt. “a majority… (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing”.
As might be anticipated, there were complaints about problems with connectivity. And there was a feeling that for remote hearings telephone links were not as satisfactory as video links.
The President of the Family Division, Sir Andrew Macfarlane has welcomed the report and undertaken to ensure that the issues raised are addressed.
One specific point made by the Nuffield authors is that they do not expect any early change to practices currently in use to deal with the implications of Covid 19. Because of the urgency of many of the issues which which the family court has to deal, it is essential that all those involved continue to work to improve what is currently happening. Of course, the longer this goes on, the more evidence can be obtained about what works well in the new system as well as what does not work well. I am sure that, after Covid-19, the system as a whole will not return to its pre-pandemic state.
The Nuffield Family Justice Observatory Report and Consultation are at https://www.nuffieldfjo.org.uk/resource/remote-hearings-september-2020.
Sir Andrew Macfalane’s comments are at: https://www.judiciary.uk/announcements/remote-hearings-in-the-family-justice-system-follow-up-consultation-report/
Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession
I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).
Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.
The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.
The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.
As regards Magistrates’ Courts, the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.
By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.
The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.
The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.
The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm
Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm
Domestic Abuse Bill 2020 goes to the Lords: Integrated Domestic Abuse Courts pilot announced
Reforms in the ways in which cases involving domestic abuse are to be handled is another area of the current Government’s policy programme that is still being taken forward despite all the media attention on dealing with the Covid-19 pandemic. (There is of course a link in that reports of incidents of domestic abuse have risen substantially as a side effect of people being placed in lockdown as the first response to attempting to limit the impact of the pandemic.)
The Domestic Abuse Bill 2020 (noted in this blog (21 May 2020) has completed its journey through the House of Commons on 6 July 2020. It has now been sent to the House of Lords where is received its formal first reading in the Lords the following day.
In my earlier blog I set out the primary objectives of the new bill, so will not repeat them here. There are, however, still concerns about the scope of the bill. In particular, it is argued that people with unsettled immigration status (who are not permitted to have access to services provided through public funding) will remain at particular risk, despite the overall improvements to the system which will be introduced when the Bill becomes law. There are also concerns that levels of funding needed to ensure that services can be provided to the victisms of domestic violence and abuse will not be as generous as they should be.
Another development, which builds on the prospective changes in the Bill, was announced on 25 June 2020 when the Government published Assessing Risk of Harm to Children and Parents in Private Law Children Cases. This was the report of an independent study, led by three leading family law academics, supported by 10 panel members drawn from the Ministry of Justice, the judiciary, social work, womens’ aid and Respect. Commissioned by the Ministry of Justice, the report examined the experience of participants in private law children’s cases. (These are cases in which the parents of children take proceedings in order to determine arrangements relating to the custody of children.)
It consists of two significant documents:
- the analysis of responses to a widespread consulation on the issue;
- a detailed review of the existing published research on the issue.
The key issues that emerged from the consultation responses were:
- a feeling that abuse is systematically minimised,
- children’s voices not being heard,
- allegations being ignored, dismissed or disbelieved,
- inadequate assessment of risk,
- traumatic court processes,
- perceived unsafe child arrangements, and
- abusers exercising continued control through repeat litigation and the threat of repeat litigation.
These issues were underpinned by the following key themes in the evidence that was reviewed:
Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self-representation, with little or no involvement of the child.
A substantial list of recommendations was made to address these issues. The first of these related to the basic design principles for private law children’s proceedings. The panel stated that these principles should be:
- A culture of safety and protection from harm
- An approach which is investigative and problem solving
- Resources which are sufficient and used more productively
- With a more coordinated approach between the different parts of the system
Responding to the recommendations, the Government has announced an Implementation Plan. From a legal system perspective, the key decision is to start a pilot project of the ‘Integrated Domestic Abuse Court’.
Two different models will be tested and evaluated:
1. A ‘one family one judge’ approach in which certain concurrent family and criminal proceedings involving domestic abuse are heard by the same cross-ticketed judge, with the aim of reducing the need for victims to re-tell their stories and promoting a more joined up approach to the handling of such cases between the jurisdictions.
2. An ‘investigative’ approach to the family courts. This will explore ways to move away from the current ‘adversarial’ system to adopt … a more investigative approach [which] will focus on ways to improve gathering and assessing appropriate evidence. Specific emphasis will be placed on ensuring the voice of the child is heard effectively. [The Government] will seek to tackle problems more effectively through the better provision and signposting of support services, while a review stage during the pilot will aim to increase long term sustainability and reduce returns to court.
The Government intends to adopt a phased approach to both pilots. The first phase will involve a period of designing and small-scale trialling of potential solutions to aspects of the detailed pilot. This would be followed by the second phase, the full pilot of both approaches, the design of which will take account of the trial findings from the first phase.
The Covid-19 pandemic presents particular challenges to the immediate launch of this pilot. Both the family and criminal courts have had to alter drastically the way in which cases are processed at this time, and the results of any pilot undertaken in such circumstances are likely to be less representative and informative than they would usually be. In addition, courts and practitioners are under considerable pressure to ensure that as many cases as possible are heard at this time.
The Government therefore needs to keep the start date of the pilot under review dependent on the duration and impact of Covid-19, but will commence it as soon as it is practical and safe to do so. The Government will work with a range of stakeholders to develop the pilot plans further, and then publish additional information and a start date for Phase 1 as soon as the current situation permits.
For the version of the Domestic Abuse Bill which has gone to the House of Lords, see https://services.parliament.uk/Bills/2019-21/domesticabuse.html
For the reports of the study Assessing Risk of Harm to Children and Parents in Private Law Children Cases, see https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history
The Implementation Plan is also available at https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history
Covid 19 and the English Legal System (10): Family Justice
In an earlier blog, Covid 19 and the English Legal System (8): guidance on new working practices, published on 3 July 2020, I drew attention to a resource from the Judiciary, setting out guidance to different courts and tribunals on how to manage cases in the current Covid 19 environment.
This note draws attention to just one of the documents that is to be found on that website. The Remote Access Family Court, (version 5), written by one of the Family Court judges, Mr Justice MacDonald, is a detailed statement of the ways in which in the context of the work of the Family Court, remote access hearings may be conducted, the sorts of proceedings for which remote hearings might be appropriate; the considerations to be taken into account when deciding whether a case should proceed remotely or not.
The primary impetus for the production of the document is the need to keep the business of the family courts going, particularly where matters must be dealt with urgently. The document acknowledges that the continuing need for social distancing is likely to mean that the practices and procedures considered in this report are like to retain their relevance, at least for some months ahead.
However, while acknowledging that aspects of the practices and procedures currently being used may be retained once the problems associated with the Covid 19 pandemic have eased, it states in terms that it should not be assumed that changes currently being adopted will necessarily be retained into the future.
What is clearly needed is for HMCTS to gather robust evidence about how innovations in practice and procedure are working, which takes into account not only the views of judges and lawyers, but also – crucially – the views of parties to proceedings who have experienced the new procedures in operation. New ways of working which work well should be retained; those which do not should be altered or abandoned.
A very first attempt to gather evidence about the new system in operation was made in April 2020, when the Nuffield Family Justice Observatory was asked to undertake a rapid consultation on the use of remote hearings in the family justice system. This produced some preliminary information which helped consideration of when remote hearings might be possible and when remote access should not be used. For example, there was a general feeling that video hearings are more satisfactory than telephone hearings. There was also worry about some of the difficulties associated with the use of different technologies. But these findings are acknowledged to be only preliminary. Much more work needs to be done before a rounded assessment can be made, on which future policy may be based.
What the pandemic has done – and this comment applies to the whole of the justice system, not just family justice – has created the conditions in which new ways of working can be tested. It would be really disappointing if positive lessons learned from these experiences cannot be captured by a proper research programme, which would help the development of future policies for dispute resolution in courts and tribunals.
The report by Mr Justice MacDonald is at https://www.judiciary.uk/announcements/updated-version-of-the-remote-family-access-court-released/
The Nuffield Family Justice Observatory consultation is at https://www.nuffieldfjo.org.uk/coronavirus-family-justice-system/family-courts
Domestic Abuse Bill 2020
The problem of domestic abuse has slowly risen up the political agenda over the past few years. For far too long regarded it was regarded as essentially a private matter in which public authorities, in particular the police, were often reluctant to act. However, the indefatigable work of charitable organisations, such as Refuge, have done much to change the minds of policymakers. And it was an issue which the former Prime Minister Theresa May took particularly seriously.
Over the last 2 and a half years, there have been a series of steps leading to reform of the law.
1. A Consultation Paper, setting out proposed changes to the law, was published in March 2018. This identified 4 objectives for change:
- promoting awareness – to raise public and professional awareness
- protection and support – to enhance the safety of victims and the support that they receive
- transforming the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
- improving performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
2. The consultation was followed by a draft Domestic Abuse Bill in March 2019 which was considered by a Joint Committee of the House of Commons and House of Lords. It set out the following issues which required legislative change. They are:
- creation of a statutory definition of domestic abuse;
- establishment of the office of Domestic Abuse Commissioner, and setting out the commissioner’s functions and powers;
- providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
- prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
- creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
- enabling high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
- placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
- ensuring that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
- extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
3. The consultation on the Draft Bill was concluded in July 2019, and a Domestic Abuse Bill was introduced into Parliament on the same day. However, it fell when the December 2019 General Election was called.
4. In March 2020, a revised Domestic Abuse Bill was published which is now proceeding through Parliament. It is largely the same as the 2019 Bill though a number of proposed clauses have been strengthened. For example, the powers of the Courts to protect victims from being cross-examined by abusers have been enlarged.
The timetable for the Bill provides that it should have passed through the Commons by the end of June 2020. It is likely to have passed the Lords and be given Royal Assent sometime in the Autumn of 2020.
Although I have not linked this initiative directly to Covid 19, as I have done in a number of other blog items, there is a clear link between the two since one of the well-publicised consequences of the Covid-19 lockdown has been a sharp increase in the numbers of people seeking help to protect them from domestic abuse.
I will update the blog on this issue after the Bill becomes law.
For the work of Refuge, see https://www.refuge.org.uk/
A press release relating to the 2020 Bill is at https://www.gov.uk/government/collections/domestic-abuse-bill
Further documents relating to the Bill are at https://services.parliament.uk/bills/2019-21/domesticabuse.html
Changing the grounds for divorce – new legislation proposed
Family lawyers have long argued that the current law of divorce, which requires parties to prove that a marriage has broken down irretrievably and force spouses to provide evidence of ‘unreasonable behaviour’ or years of separation – even in cases where a couple has made a mutual decision to part ways – often exacerbates conflict, rather than reduces it. Although very few divorces are contested by the parties, this practice is known to be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour.
Following a consultation, in April 2019, the Government announced that it would bring forward a Bill, which if enacted, would change the law.
The key features of the proposed legislation are :
- the irretrievable breakdown of a marriage will become the sole ground for divorce;
- instead of a requirement to provide evidence of a ‘fact’ around behaviour or separation, there will be a requirement to provide a statement of irretrievable breakdown;
- the two-stage legal process, currently referred to as decree nisi and decree absolute, will be retained;
- couples will have the option of a making joint application for divorce, alongside the option (existing) for one party to initiate the process;
- the ability to contest a divorce will go;
- a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute), will be introduced.
Proposals for reforming divorce law are always controversial. Critics argue that making it too easy to get a divorce will undermine the institution of marriage. But those who currently deal with divorce on a daily basis see the emotional harm that current arrangements can bring and have broadly welcomed the new proposals.
The Bill will be introduced ‘when parliamentary time permits’.
Further information is at https://www.gov.uk/government/news/new-divorce-law-to-end-the-blame-game which gives links to the consultation on which these proposals are based.
The functions of the family court: the need for joined-up policies?
Shortly before his retirement from the post of President of the Family Court, Sir James Munby gave an extremely interesting lecture at the University of Liverpool about what he regarded as the failings of the current family court system.
He developed two principal arguments. The first focussed on what might be called the core functions of the family court; the other offered a more ‘holistic’ vision for the family justice system.
In relation to the first, Sir James noted that the core functions of the family court involved three key issues
- determining questions of status – were a couple married or in a civil partnership or not;
- determining what should happen to the children of marriage; and
- determining the financial consequences of family breakdown.
He argued that the procedural rules and practices in relation to each of these questions were complex and resulted in potentially people having to go to court on more than one occasion to resolve their issues. Despite the unification of the family court under a single name, it did not and could not in practice operate as a ‘one-stop shop’.
It could be argued that these days questions of status were increasingly being determined on a ‘self-help’ basis (which would increase if the basic law on divorce were to be reformed and simplified) ; and that financial matters were being decided in special financial proceedings meetings taking place outside the formal court structure. Thus the courts were increasingly used for determining questions relating to children. But these trends should not mean that the issue of whether the family court could become more of a one stop shop should not be investigated more closely.
It was the second set of arguments – for a more holistic approach to family justice – that I found interesting. Sir James is a keen advocate of ‘problem-solving’ courts – courts that have the resources and expertise to try to deal with all the problems families may face (including, for example, criminal matters or public law issues such as immigration status) – so that families can obtain a secure basis on which they can build their future lives.
This is an interesting argument and reflects (although Sir James may not have been aware of this) research and policy development a number of years back which argued that people don’t have discrete problems (e.g. housing, or employment, or family – which are categories created by lawyers which don’t reflect how life is actually lived) but ‘clusters’ of problems. This led to interesting experiments, now regrettably abandoned for the creation of Community Legal Advice Centres or Community Legal Advice Networks, that could deal with clients in a ‘holistic’ faction.
These views are controversial, at least for lawyers, since they would mean cutting across long established categorisation of the justice system – into criminal, civil, administrative and family justice system – each with their own practices, procedures and traditions. For this reason, my hunch is that Sir James’ views may not be taken forward, at least in the short-term.
But I thought his arguments were rather refreshing, and worth thinking about.
You can read his lecture at https://www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf
Financial Remedies Courts: developments in Family Justice
2018 will witness the start of a new approach to dealing with the financial matters that can arise when married couples are divorced. The current President of the Family Division, Sir James Munby has set out his ambition that disputes about financial matters should be treated quite separately from the process of getting the divorce itself.
To this end, a series of pilots is being launched in February 2018 in which, in three trial areas of the country, financial matters will be dealt with by specially trained judges in a reduced number of family court hearing centres. The courts undertaking this work will be known generally as Financial Remedies Courts.
The new system will initially be operated on a trial basis in three areas of the country: London, the Black Country and South East Wales.
The President clearly hopes that expansion of the scheme to other parts of the country will take place rapidly.
In a recent Circular, Sir James wrote:
My core ambition for financial remedy work is to improve significantly both the application of procedural justice and the delivery of substantive justice.Procedural justice will be bettered by the appointment of a cadre of specialist judges to the Financial Remedies Court (FRC) and by a process of early allocation of a case to the right judge at the right level at the right place, so as to ensure maximum efficiency. It will be bettered by the application and enforcement of standard directions and interim orders and by ensuring that FDRs (where the majority of cases settle already) are conducted with consistency, with sufficient time being allowed not only for the hearing but also for judicial preparation.The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings.An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.
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/
Transforming the English Legal System: Family Justice
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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 