Courts face "imminent crisis" with rise in care cases: top family judge

The family courts face “a clear and imminent crisis” as a result of the rapidly rising number of care cases, the President of the Family Division has warned.

In his latest View from the President’s Chambers Sir James Munby said the first step that could be taken was “to do everything we properly can without sacrificing what is fundamental or prejudicing standards to improve the way in which we handle care cases”. [Judge’s emphasis]

In this respect Sir James said:

• Too many documents were still too long. Following consultation earlier this year, the President is to amend PD27A, the Bundles Practice Direction, to impose page limits for certain categories of documents.
• Local authority threshold statements needed to be shorter, more focused and Re A [2015] EWFC 11 compliant.
• Every effort must be made to ensure the effectiveness of the CMH [case management hearing], so as to avoid or at least minimise the need for further direction hearings.
• More stringent scrutiny needed to be applied when applications for experts are being considered.
• Every effort must be made to ensure the effectiveness of the IRH [issues resolution hearing], so that the final hearing, if still required, focuses on what is really, and appropriately, in issue.

He added: “The other thing is to continue to look for new, innovative and better ways of handling these cases, for example, by piloting and then rolling out the settlement conferences….” (described in the judge’s previous View from the President’s Chambers, issued in August).

“This is going to be uncomfortable and difficult for all of us.”

However, the President said he would never countenance any departure from the fundamentals, including that care cases were of unique gravity and importance, it was for the local authority to establish its case, and the tandem model was fundamental to a fair and just care system.

He repeated earlier comments that there could be neither compromise nor retreat on the fundamentals, but noted that this did not mean that there was no scope for improving, streamlining and speeding up processes.

Sir James said the single most important thing that could and must be done “urgently and with unremitting vigour” to manage the crisis was the need for a radical rebalancing of the very functions and purpose of the family courts.

“The family court must become, in much of what it does, a problem-solving court,” he argued, adding that there should be “no slowing down, no pulling back” in the development of initiatives such as the Family Drug & Alcohol Court (FDAC) and Pause.

The President said FDAC, Pause and similar projects were, at present, the best hope – “in truth, the only hope, we have” – of bringing the system, the ever increasing numbers of care cases, under control.

In this issue of the View from the President’s Chambers, Sir James started by charting  the rise in care cases from 2005-6 to 2016-17. The figure, 6219, for the first five months of the current year (from April to August 2016), is up almost 23% over the figure, 5059, for the corresponding period the previous year.

The judge congratulated everyone in the system for the fact that the average duration of care cases had fallen rapidly month by month since the implementation of the recommendations of the Family Justice Review, and not yet begun to climb. “To keep the line level as the caseload increased by 14% is an astonishing achievement.” [14% was the increase in care cases in 2015/16]

He added: “I hope I turn out to be wrong, but I do not believe that this level of achievement can be maintained as caseloads continue to rise. The fact is that, on the ground, the system is – the people who make the system work are – at full stretch. We cannot, and I have for some time now been making clear that I will not, ask people to work harder. Everyone – everyone – is working as hard as they can.”

It must be assumed that the line on the graph will start to go up, to move in the wrong direction, the judge said. “We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis.”

Sir James said that, at least in the short term, the courts and other stakeholders would have to struggle to cope within existing resources. The practical operation of the tandem model would need to be scrutinised because the increase in care cases was driving up the cost of legal aid.

On the causes of the increase in care cases, the President said these were little understood. He said he did not believe that child abuse/neglect was rising by 14% a year, let alone 20% a year.

The judge suggested that changes in local authority behaviour therefore “must be playing a significant role”, adding that this was supported by the statistics, with there being very wide variations between Designated Family Judge areas, and thus between local authorities. Some DFJs were facing much smaller increases.

Cafcass figures also showed that when it came to the number of care cases per 10,000 child population, there was a wide range of figures as between different local authorities and significant fluctuations within individual local authorities of the figures from year to year.

Sir James noted that the investigations that had taken place so far suggested that there were many factors at play and none had a preponderating impact. “The drivers are complex, with multiple drivers that have moderate or small impact creating a cumulative impact, rather than a small number of key drivers with high impact.”

The judge added that further research was desperately needed if accurate predictions for the future were to be made. The President set out areas where he considered detailed research and analysis was required. He called for the use of Recorders and Section 9 Judges to be maximised, and for the processes of judicial recruitment to be speeded up on the retirement, resignation or death of sitting judges.