Posts Tagged ‘problem-solving courts’
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
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
The future of Family Drug and Alcohol Courts
For a number of years, Family Drug and Alcohol Courts (FDAC) have existed in a small number of court locations in England. Inspired by a model developed in the USA, Judge Nicholas Crichton thought that such courts could offer a ‘problem-solving’ approach for families caught up in the justice system, because of the negative interactions between the use of drugs or alcohol and the treatment of children. If parents could be helped to kick their habits, it was argued, this might enable families to be kept together, rather than divided with children being taken into care.
Although judges and ministers like the concept, the roll out of the concept has been left very much to local initiatives. In 2015, a FDAC National Unit was created to support existing schemes (there are currently 10 teams, working in 15 courts, service families in 23 local authorities) and to encourage the development of new schemes.
In June 2018, the National Unit announced that it would have to close, as central government funding was being withdrawn from the Unit. Since then, a firm of solicitors has stumped up £12,500 for 3 years, and is leading a fundraising campaign to obtain the £250,000 needed to keep the Unit open.
The schemes themselves are also funded on a cash limited ad hoc basis. For example, in October 2017, £6m was awarded to the Tavistock and Portman NHS Foundation Trust to enable the work of FDAC teams to be extended to more boroughs in London. The grant was made from the Government’s Life Chances Fund.
There is evidence that, where they exist, schemes deliver savings to the taxpayer (by reducing the costs of keeping children in care, for example.) But it seems that there is still someway to go before use of the approach will be rolled out on a national basis, and funded on a secure recurrent basis.
Further information on the FDAC National Unit is at http://fdac.org.uk/.
News about the private funding initiative is at https://www.thetimes.co.uk/article/law-firm-steps-in-to-help-save-family-drug-and-alcohol-court-mtk6jrtxd.
News about the grant from the Life Chances fund is at https://tavistockandportman.nhs.uk/about-us/news/stories/problem-solving-family-drug-and-alcohol-courts-fdacs-support-more-families-6m-life-chances-grant/
Children Across the Justice Systems
This was the title of an extremely important and interesting lecture, given by Sir James Munby, President of the Family Court, to the Howard League for Penal Reform at the end of October 2017
What, it might be asked, was our leading family judge doing talking to those whose interest is in the criminal justice system?
Sir James used his lecture as an opportunity to argue for a new approach to the treatment of young people who come into contact with the criminal justice and penal systems. He sets out with admirable clarity what he sees as the main problems with current arrangements, including: the very complex set of institutions with which the young offender may come into contact; the huge variety of government departments – both central and local – charged with developing and delivering policy in relation to young offender; and the inconsistency of approach of different agencies towards how young offenders and their families should be dealt with.
Sir James argues that, in this context, family justice and criminal justice should be brought together. Specifically, he argues that the role of the Family Drug and Alcohol Court should be expanded to enable it to take on cases which are currently dealt with in the Youth Court.
He recognizes that such a development would represent a big policy change and could not come into being in the short-term. He therefore also proposes interim measures that might go someway towards meeting the objective he has outlined.
So far as I am aware,the Government is not currently contemplating such a major change, but I think Sir James offers ideas that should be carefully considered.
The lecture is available at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/speech-pfd-children-across-the-justice-systems.pdf
Problem solving courts – next steps
One of the really interesting ideas under consideration in government and the judicary is that of ‘problem solving’ courts. The concept has been floating around for some time but has recently been given new impetus.
The working group will advise on:
- existing models of problem-solving courts nationally and internationally, and their applicability to England and Wales;
- the feasibility of options for pilot models including practical, legislative and constitutional issues, and judicial leadership;
- the support needed from within and without the criminal justice system, including the development, or improvement, of pathways in to rehabilitative and behaviour change interventions
- the key criteria for a future suite of pilots of problem-solving courts, including the lessons from previous pilots and the required statutory provisions for taking forward any new pilots.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 