Judicial involvement in pre-proceedings for care cases to be piloted: top judge

Schemes for judicial and CAFCASS involvement in the pre-proceedings phase of some types of care case will be piloted in selected courts shortly, the President of the Family Division has said.

In an address to the annual dinner of the Family Law Bar Association, Sir James Munby said: “The idea may seem astonishing – how can a judge be involved pre-proceedings? – but we have to think in new and perhaps very radical ways about how best to make the child’s journey though the care system as seamless as possible.

“The judicial phase of the process as we currently see it is only a part of a much longer process which needs to be better planned and coordinated then at present, not least in the interests of the children, and the parents, caught up in the system.”

The Family President said new ways of thinking about the interface between the pre-proceedings phase and the actual proceedings “might go a long way to addressing the problems surrounding the use, and on too many occasions the mis-use, of section 20 – problems which, unhappily, have drawn much all too merited judicial criticism in recent months”. 

Sir James said what needed addressing was the pressing need for a radical rebalancing of the very functions and purpose of the family courts.

“It is a truism that the fundamental difference between the civil courts and the family courts is that the civil courts focus on what has happened in the past, whilst the family courts look to the past only to identify the problem before focusing on what needs to happen in the future,” the judge said.

“But as we presently understand it, this forward looking aspect is usually confined to providing a solution rather than solving the underlying problem – or, typically, the concatenation of underlying problems. The family court must become, in much of what it does, a problem-solving court.”

The Family President praised the “excellent and immensely fruitful work being done in ever increasing numbers of cases in the ever expanding network of FDACs" [Family Drug and Alcohol Courts].

He said another similar project – ‘Pause’ – was now in development, focusing on addressing the underlying problems of the “all too many” women who find themselves losing successive children in repeat care proceedings. Other projects are also being considered, the judge added.

“This is vitally important work. It improves the outcomes for children. It improves the lives of parents. And it saves money – large sums of money – for a variety of public purses," he argued.

Commenting overall on the family justice system, Sir James said the family courts were set to move into a new phase of reform – “reform so fundamental that in retrospect the great reforms implemented in April 2014 will seem modest in comparison".

In his FLBA address the Family President also revealed that:

• He hoped within the next few months to issue for consultation draft guidance on how better to anonymise judgments so as to minimise the risk of ‘jig-saw’ identification. This follows research by academics on the guidance he issued in January 2014.
• Implementation of the recommendations of the Hayden / Russell children and vulnerable witnesses working party, as of the subsequent proposals of the Family Procedure Rules Committee, had been delayed as the judiciary awaited decisions by officials and Ministers on various funding and other resource issues. The President said he lived “more in hope than expectation”, and that his ambition was that the new rules and practice directions would be in place by the autumn.


• Consultation was under way on the further tightening-up of the Bundles Practice Direction by the imposition of pages limits for various types of documents. “It has already produced mordant comment to the effect that for some unfathomable reason there is no proposal to impose page limits on judgments!”, Sir James said.
• Settlement conferences – “the broad equivalent in both private and public law children cases of the now familiar FDRs in money cases” – were an established and proven part of the process in some Canadian courts. “They are being trialled, with my enthusiastic support, in various courts in this country, starting with the Liverpool Family Court, where the early indications of success are extremely encouraging,” the President said. “I hope that we will soon be in a position where settlement conferences are as much day to day practice in children cases as FDRs are in money cases.”

But the Family President said the real revolution would be “moving to the digital court of the future”. He suggested that recent progress has been rapid, and the pace of change was rapidly accelerating.

“We have F-Diary. More and more courts are using eFiles in the court office and eBundles in the court room. But we still have a long way to go to the entirely digitised and paperless court of the future, though this is – must be – a vision not of some distant future but of what has to be, and I believe can be, achieved over the next four years of the Courts Modernisation Programme,” Sir James said.

The programme extended to the entire justice system: crime, civil, family and tribunals, and was subject to a very tight timetable, the judge noted. “It is a visionary programme of ambition unprecedented anywhere in the world. But it can be done; it must be done; it will be done. And when it has been done, we will at last have escaped from a court system still in too large part moored in the world of the late Mr Charles Dickens.”

The President suggested that in future, proceedings would be issued on-line, with the applicant not filling in an on-line application form but an on-line questionnaire capturing all the relevant information while at the same time being much more user-friendly.

Some processes would be almost entirely digitised: early examples would be digital on-line probate and digital on-line divorce, both planned for at least initial implementation early in 2017, he said.

“Some proceedings will be conducted almost entirely on-line, even down to and including the final hearing. The judge, who will not need to be in a courtroom, will interact electronically with the parties and, if they have them, their legal representatives.”

Sir James stressed that the heaviest cases would continue to require the traditional gathering of everyone together in a court room, “though probably only for the final hearing and any really significant interim hearings”.

The other hearings in such cases would increasingly be conducted “over what we quaintly continue to call video links – though I earnestly hope using equipment much better than the elderly and inadequate kit to which we are at present condemned”, he said.

The Family President said the digital court of the future "with its large population of unrepresented litigants" would also demand other radical changes.

“We need an entirely new set of rules; indeed, an entirely new and radical approach to how we formulate court rules,” he suggested. “The Non-Contentious Probate Rules of today would be all too familiar in their archaic and sometimes impenetrable language to my distinguished Victorian predecessors….. The Family Procedure Rules, like their civil counterparts, are a masterpiece of traditional, if absurdly over-elaborate, drafting.

“But they are unreadable by litigants in person and, truth be told, largely unread by lawyers. They are simply not fit for purpose. The Red Book, like the White Book, is a remarkable monument of legal publishing, but, I fear, fit only for the bonfire. Rules, to the extent that we still need them, must be short and written in simple, plain English. But in reality, much that is currently embodied in rules will in future simply be embedded in the software of the digital court.”

Sir James suggested the ‘digital revolution’ would also allow for a radical revision of both court forms and court orders.

“The thickets of numberless court forms – I speak literally; no-one knows how many there are, though in the family justice system alone they run into the hundreds – must be subjected to drastic pruning, indeed, radical surgery, before they are digitised. Court orders must be standardised – work on this is well advanced – and digitised, with standard templates, self-populating boxes and drop-down menus designed to ease and shorten the process of drafting and then producing the order.”

The judge added that proper wifi access was needed in courts, “to avoid the farce of counsel having to leave the building to find a spot on the pavement outside where they can communicate with the court. Given the marvels of modern IT, why should we not be able to hand every litigant in all but the lost complex cases a sealed order before they leave the courtroom?”

Sir James urged members of the FLBA “to embrace with enthusiasm new, and where appropriate different, working practices”.

“Keep to the substance of your craft, but be prepared to jettison what is only form. Cleave to the essentials. If necessary, abandon the inessentials. Make the most of direct access. Make the most of the barrister’s equivalent of what the solicitor knows as unbundled legal services. Consider the offer of guaranteed fixed fees. Embrace the opportunities for advocacy in the context of the ever-expanding range of Non Court Dispute Resolution services – arbitration in particular,” he suggested.