President of Family Division: 26-week limit is a deadline, not a target or average

The 26-week time limit for completing care proceedings can and must be met in all but a “comparatively small” number of exceptional cases, the President of the Family Division has said.

In an update on progress on the modernisation of family justice, Sir James Munby said: “We can [meet the limit], because various pilots and initiatives are not merely showing us that it can be done but, even more important, showing us how it can be done.

“We must, because if we do not, government and society will finally lose patience with us. I believe it can be done and I am determined to do everything in my power to make sure that it is.”

Sending out a “clear and uncompromising” message, he added: “This deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

The President acknowledged that the family justice system was undergoing the most radical reform in a lifetime. “Fundamental to this is a change of culture in the way cases are managed – both public law cases and private law cases – so that we can finally get to grips with the problem of delay."

He said: "Everyone involved in the family justice system has a part to play in changing the culture and reducing delay. There is no single solution. We will achieve what must be achieved, but only if everyone plays their part.”

In relation to case management, Sir James described the role of judges as crucial. “Robust and vigorous case management will be essential, in particular if we are to meet the new 26-week requirement,” he said.

The President added that it was essential for judges to get a grip on “the expert problem”. He said: “The problem does not, of course, lie with the experts themselves. It lies in the use we make of them.

“Three things are needed: first, a reduction in the use of experts; second, a more focussed approach in the cases where experts are still needed; and, third, a reduction in the length of expert reports.”

Sir James highlighted the amendment to the Family Procedure Rules in January 2013, where “the old test – whether expert evidence was ‘reasonably required’ – was replaced with a significantly stiffer test – is the expert ‘necessary’?”

That change raised the bar significantly, he argued, adding that case management judges would need to enforce robustly this new approach.

“Some experts will no longer be required at all,” he predicted, adding that robust case management also required that those experts who were needed had to deliver their reports more promptly and in a shorter and more focused fashion.

The President continued: “The case management judge’s approach should be: ‘give me three good reasons why you say this expert is necessary’. We must encourage the other parties in their turn to state their views robustly as to whether the proposed expert evidence is necessary.

“They should no longer sit on the fence or adopt a position of neutrality, whether benevolent or otherwise. If in their view the expert is not necessary, they should say so and explain why.”

Sir James argued that the case management judge would have to adopt a more ‘hands on’ approach to the drafting of letters of instructions to experts and the formulating of the questions (“fewer and more focused in future”) they are to be asked to consider.

The judge added that neither the 26-week limit nor the reforms to experts’ evidence would prejudice the quality of justice or the interests of those who appeared before the courts.

In the update, the President also gave more information on the work underway on a revised Public Law Outline, which he said would put a much greater emphasis than previously on the first hearing.

This hearing will be re-named to bring out the key fact that it is to be the effective case management hearing, he added.

“The existing CMC (also to be re-named) will be held only if necessary,” he said.

The judge added that the new PLO would also emphasise the use that must be made of the IRH (Issues Resolution Hearing) wherever possible, and if appropriate with the calling of oral evidence, to determine discrete issues and, if possible, the entire case.

On the issue of the first hearing, Sir James said four things were needed if it was to be effective:

1. The local authority must deliver its material – “the right kind of material” – on day one. “If that does not happen, the entire timetable will be thrown out.” The President repeated previous comments he made to Parliament calling for local authority materials to be much shorter than hitherto and be more focused on analysis than narrative.
2. Cafcass had to be able to deliver, and it could deliver on time only if the local authority had delivered on time. “Assuming that the local authority has delivered, Cafcass must be in a position by the first hearing to provide an analysis of what the case is about and to advise the court what evidence and assessments are, and equally important what evidence and assessments are not, necessary.”
3. If this were done, the case management judge at the first hearing would be able, “even at this very early stage”, to embark on timetabling the case and giving comprehensive directions for the case, “adopting a robust, vigorous style of case management”. The President said it was vitally important, as part of the process at the first hearing, for the judge to implement the new arrangements in relation to experts.
4. Still at the first hearing, both the court and the parties’ legal advisers had to adopt a more robust approach with the parents. “If the local authority has delivered its material in the right form at the outset, there is no reason why, as part of robust judicial case management, the parents should not be required at the first hearing to submit to orders requiring them within an appropriately short timescale, for example, to respond clearly to the local authority’s case – to say yea or nay whether they agree or disagree with the local authority’s case on threshold – and to identify possible family carers.”

Sir James said he was confident that both local authorities and Cafcass would deliver on time. “The simple fact is that they must if we are to be able to comply with the timetable that Parliament is going to impose on us,” he added. “Everyone involved must get a grip on the case at the first hearing.”

On the move to new single Family Court, which is set to come into existence in April 2014, the President stressed that magistrates would continue to handle public law work.

He wrote: “I do not accept, I have never accepted, that magistrates are unsuited for family work or, in particular, for public law cases. Quite the contrary.”

Sir James stressed that there was “no agenda” that magistrates should in future concentrate only on private law cases.

He said: “Given the great discrepancies at present in the balance of public and private law work being done by different Family Proceedings Courts, there is likely over time to be a rebalancing in some places between the two kinds of cases. But magistrates are going to continue doing significant amounts of public law work.”

The President added that justices’ clerks would have a pivotal role to play as members of the ‘gate-keeping and allocation team’ in the Family Court.

Sir James meanwhile expressed his determination to take steps to improve access to and reporting of family proceedings.

“I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice,” he said, adding that he hoped to be in a position to make important announcements in the near future on this front.

The President repeated his previous comments that failure was not an option when it came to implementing the reforms.

The judge concluded: “For those of you who are sceptical, remember that the architects of the Children Act 1989, and they were not fools or dreamers, thought that care cases would – should – take no longer than 12 weeks.”

Sir James took over as President on 11 January 2013, succeeding Lord Justice Ward, who retired on grounds of ill-health.