Courts must prepare for significant increases in care cases, says top judge

The family courts must plan on the basis that there will continue to be significant increases in care cases, the President of the Family Division has warned.

In his latest View from the President’s Chambers, Sir James Munby noted how the number of new cases had continued to rise, “seemingly relentlessly”.

He cited Cafcass figures showing that in the 12 months to March 2016 there were 12,781 new cases, up 14% on the 11,159 the previous year. In the four months from April to July this year there have been 4,959 new cases, up 20% on the corresponding period in 2015.

“The reasons for the increase are little understood and are currently being investigated,” the President said. “We must however plan on the basis that there will continue to be significant increases.”

That was one reality, Sir James wrote. “The other reality is that we are unlikely to see any increase in resources, judicial or otherwise.”

The President said that new, innovative and better ways of handling care cases should continue to be looked for, “while never departing from the fundamentals”.

These, he wrote, were that:

• Care cases, with their potential for life‐long separation between children and their parents, were “of unique gravity and importance”;
• It was for the local authority to establish its case;
• Common‐law principles of fairness and justice demanded, as did Articles 6 and 8 of the [European Convention on Human Rights], “a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers”.

Sir James said he would “not countenance any departure from the fundamentally important principles” which he had sought to explain in Re B-S [2013] EWCA Civ 1146 and in Re A [2105] EWFC 11.

The Family President said he would write in future about ways in which improvements could be made to how public law cases are dealt with, “for example, by continuing to expand the concept of the ‘problem-solving court’ through extended use of such techniques as FDAC [the Family Drug and Alcohol Court] and PAUSE [a project working with women who have experienced repeated removals of children from their care], and by reaping in the family court all the benefits of the digital on-line court which is key to the success of the entire court modernisations programme”.

In this View from the President’s Chambers Sir James also considered two initiatives: settlement conferences; and the way the ‘tandem’ model operates.

The President said that he was aware that the pilot of settlement conferences had met with a mixed response, and that it would be helpful to “clarify a number of misconceptions”.

The judge wrote:

• The pilots had his full support and the judges taking part were volunteers. “It is, therefore, a judicially-led initiative, as it was in Canada when the approach was first introduced over 15 years ago.”
• It was important to stress that the paramountcy principle and the tandem model of representation of children applied just as much to settlement conferences in the pilot as to any other part of the public law system. The ethos of the conference was not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground. “Judges do not, and in my view must not, address parties in the absence of their legal representatives. A question may arise as to whether a judge should see one party, together with their legal representatives, on their own and without the other parties or their representatives being present. “In my view very great caution is needed. Only in exceptional circumstances would this be appropriate, and then only if all parties expressly agree to the judge proceeding in this way.”
• It was important to remember that the settlement conference approach was being piloted, and this pilot was a genuine attempt to test whether the model could work as well in this system as it does in Canada. When the pilots come to be evaluated, the President will be “looking closely to see whether the settlement conference approach compromises, in any way, the fundamental principles of our public law system such as the right to legal representation, Article 6 and 8 rights, the paramountcy principle and the importance of ensuring that the voice of the child is heard”. Sir James and other members of the judiciary will sit on the advisory group which will consider the evaluation findings.

On the tandem model, which requires that in every care case the child is represented by both a guardian and a solicitor, Sir James said it was fundamental to a fair and just care system. With it, the potential for injustice was much increased. The judge said he would be “strongly opposed to any watering down of this vital component of care proceedings”.

However, the President added that this did not mean the model’s practical operation should be immune from scrutiny.

The judge noted that in some cases, the solicitor would instruct counsel, sometimes in the very heaviest cases, two counsel, a junior and a QC. “This is, I emphasise, is as it should be. But we need to remember that this all costs money.”

Sir James repeated his comments in Re L [2015] EWFC 15 (para 18), in which he issued a plea for restraint in the expenditure of public funds. In that case the judge said it was “no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is ‘necessary’ to enable the court to deal with the proceedings ‘justly’.”

The President noted how the Ministry of Justice, with his support, was investigating whether there was scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice.

“From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

“But, I emphasise: so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model.”

The MoJ is to conduct a data-collecting exercise in 12 courts. “A second phase, also involving the judiciary, will explore how a reformed model of representation could work in practice.”