The President of the Family Division has expressed his opposition to the creation of a Family Justice Service, which was one of the key recommendations to come out of the Family Justice Review.
In a paper to the law reform committee of the Bar Council, Sir Nicholas Wall said he believed that the FJR represented an opportunity to reform the family justice system that was unlikely to be repeated in his professional life time and that it must be seized.
He argued that active case management and judicial continuity were the two principal contributions judges could make to tackling delays. However, Sir Nicholas acknowledged that the cultural change necessary for the judiciary was “immense, and not to be under-estimated”.
The President insisted that the role of the judiciary was critical to the system’s success. “For example, my view remains (and the FJR recognises) that for as long as the State empowers the removal of children from their birth families into care and adoption, the decision to effect that removal has to be taken – on all the available evidence – by a dissatisfied third party who has no personal engagement in the process save that of ensuring that it is fairly and efficiently carried out.”
He added: “Such decisions, which are often very difficult and far-reaching depend upon an objective evaluation of all the evidence in each case and cannot be taken by anyone with an interest in the result – for example, by local authorities. These decisions have to be taken by judges and magistrates.”
The Family Justice Review, led by David Norgrove, made 40 recommendations on how to tackle what it described as "shocking delays" in the family justice system when it published its final report earlier this month. These included the creation of the Family Justice Service, which would be sponsored by the Ministry of Justice and designed to make sure agencies and professionals work together.
On this proposal, the President said: “I do not think that such a service is practical – at least in the short term, nor is it necessary.”
Sir Nicholas acknowledged that the government’s response to the FJR was still to be published. “But even with the FJR’s adherence to its recommendation of a new Family Justice Service I suspect that the government, keen above all not to spend money, may not implement the recommendation – at least in any way other than the purely interim,” he said.
“We should also, in my view, be wary of creating additional discussion forums in family justice. There have been too many to count, not all of which have added any value despite the cost of their creation and operation. The exception which proves the rule is the Family Justice Council.”
The President of the Family Division said he preferred the proposal – approved by the Judicial Executive Board and favoured by Mr Justice Ryder (appointed by the President as judge in charge of judicial modernisation) – for the creation of a Family Business Authority.
The authority is the operational decision-making part of the HMCTS Board for family justice issues. “Its terms of reference and makeup reflect the constitutional guarantee that the Framework Agreement (between the Lord Chancellor and the Lord Chief Justice) provides for judicial independence.”
The judge said he acknowledged that judicial independence was “something of a war horse which is often wheeled out inappropriately….. but here it is a matter of very significant constitutional importance”.
The President of the Family Division said: “I am persuaded that setting up a Family Justice Service as what would amount to a new independent bureaucracy outside HMCTS, whether to bring coherence to the family justice system or negotiating funding with HMCTS, would not be cost-effective nor would it benefit family justice (or the administration of justice in general) in the long term.
“Whilst I accept that there should be significant structural improvement, I take the view that the fundamental problems are cultural and that they will only be solved by cultural change.”
In his paper Sir Nicholas Wall also said:
- Family justice was essentially local, although this was not to say that there should not be national norms and criteria. In care proceedings the critical person is the Designated Family Judge. “I do not want anything to be done nationally that weakens the DFJ’s role or that inhibits the ability of the DFJ as a judge to lead the inter-disciplinary working arrangements that make local family justice work”. Steps are being taken to create a job description for the DFJs designed to strengthen their authority
- The important changes identified by the Family Justice Review could take place “sooner and with less cost” within the newly created HMCTS. This would in due course involve Cafcass moving from the Department for Education to HMCTS (and not the Ministry of Justice as the review suggested)
- The Family Business Authority would take responsibility for the implementation of a plan to modernise family justice. It has already been set up and will be chaired by the most senior HMCTS director with responsibility for family justice. The Authority will also help Sir Nicholas lead a cultural change by judges regarding case management
- The FBA model, which has been set up “at virtually no cost”, would be consistent with the leadership, management and co-ordination of civil justice. “It would ensure that the family jurisdiction continues to be considered within the wider judicial context and that the use of resources is maximised”
- This approach amounts to “a more realistic and cheaper means of achieving the objectives set out by the Review”. It is not currently practical to create a fresh organisation outside, the judge said.
The President of the Family Division suggested that case management and judicial continuity were the key issues for the judiciary, but acknowledged that the problems were easy to identify, but not so easy to tackle.
“Judges simply have to take control of a case – whether public or private,” he said. “It will, in my view, be good practice to write the name of the allocated judge on every file, so that when the case comes back, it comes back to that judge. Hand in hand with this must go the power to list. The judge who hears the case which has to come back must fix it for a date on which he or she can hear it.”
Power goes with permanence, Sir Nicholas argued. “The judge who is in the same location can case manage and can deal with the case when it comes back. This has simply got to happen. If it can be done in location A, it should be possible in location B. That is what the FJR says, and I agree.”
Sir Nicholas said the issue – identified by Professor Judith Masson of Bristol University – of many care cases being advocate led because the judge does not have time to go through the papers must be addressed. “With too many cases in his/her list, any agreement brokered by the advocates is ‘rubber stamped’ by the judge, who is only too glad to have an agreement which absolves him/her from reading the papers.”
The President of the Family Division said he recognised the traditional role of the English judge, but warned that times had changed. “We judges are now all case managers,” he argued. “This does not mean that we are any less judges; that function remains, and remains as the most important function we have. However, we must be involved. We tell the parties what evidence is to be called.”
Judicial continuity was also key, Sir Nicholas said. “Active case management and judicial continuity are the two principal contributions which the judiciary can make to the problem of delay.”
The judge stressed the importance of training for judges in case management, which did not come naturally to many of them. “Training, in my view, should be directed towards the propositions that from the first appointment onwards the judge (1) should take sole control of the case and (2) should be proactive, identifying issues and ensuring that the evidence in the case is being collected in a way which will most help the judge.”
Sir Nicholas warned that this could only be done:
- If there was a willingness on the part of the bench to case manage
- A determination on the part of the judges to insist that their cases are hearing promptly, and
- An insistence on the part of the judges that cases can and must be listed when the judge wants them to be listed.
“Care cases cannot wait for the judge to become available,” he said.
The President of the Family Division also insisted that the days of judges dabbling in family work were over. “Like the FJR, I am therefore clear that we need a judiciary – and by this I mean the circuit and district judiciary – which spends a great deal of its time hearing family cases,” he said.
However, he added that he was doubtful about any judge or magistrate having an unvarying diet of family work unless that was the judge’s personal choice. “My personal view is that for the circuit and district benches, a mixed diet of family with crime and/or civil is the best way of keeping sane, particularly with the enormous pressure of work under which the bench has to operate.”
Sir Nicholas said the whole problem in his view was about the sensible division of limited resources between family, crime and civil in the work of the circuit bench.
“The corollary to this is that the circuit and district bench – if they are to hear contested care applications – must exercise a degree of control over listing,” he argued. “Six months in crime will not work if it means that urgent child cases have to be adjourned for that period or go to another judge. A judge must be able to insist that a child case is listed when he or she wants.”
Listing must therefore be not only a judicial function but also more flexible, he suggested.
The President of the Family Division said that he favoured – again like the FJR – a more specialist bench as it was more efficient and generated greater confidence.
“The circuit and district judges need, in my view, to spend at least 40% of their time in family work and need to have the flexibility to list to meet the needs of the case,” he said, adding that the lay justices needed to do as much sitting as they can.
Sir Nicholas also suggested that allocation was key, saying he was in favour (like the FJR) of allocation being done in the new family court either by the district judge or a mixture of district judges, legal advisers and – if he or she wished – by the designated family judge.
Family cases are by their nature ‘dynamic’, he pointed out. “One of the principal sources of delay in my experience, is the case that has to be transferred from the FPC after some weeks because it has become a county court case or similarly to the High Court therafter,” he said.
“In addition it seems to me that allocation by an experienced gatekeeping team of case managers with knowledge of local circumstances and resources is likely to be more effective.”
The judge added that local pilots of gatekeeping teams had been very successful. “Allocation should be as flexible as possible and should be very much a matter of local judgment.”
In his paper, Sir Nicholas also said it was “a matter of considerable anxiety” that the government was proposing to take nearly all private law family work out of the scope of public funding. “Family lawyers represent some of the most vulnerable people in society, and often do so at times of great stress,” he argued.