The Final Report of the Family Justice Review was published on 3 November.

 

The Family Justice Review Panel places children and families at the centre of its reform package, with plans to reform the fundamental structure of public law, and private law children cases.

 

6-month targets for the completion of public law (care/supervision) cases together with an emphasis on out-of-court resolution of private law proceedings, the promotion of parenting agreements, and the abolition of residence/contact orders (being replaced by ‘child arrangement’ orders) are among the most radical proposals affecting current family law practice.

 

The Review Panel recommend the creation of a unified family court with a single entry point (with cases being allocated, according to case complexity, within the unified court between the different types of judge to hear a case).  Greater expectations will be placed on the Judiciary for more effective case management; the Panel recommends the creation of the post of Vice-President of the Family Division to monitor performance across the family judiciary, with Family Division Liaison Judges becoming Family Presiding Judges.  Judicial continuity is to be aimed for in all cases.

 

The headlines are as follows:

Children

  • Children and young people should be given age appropriate information to explain what is happening when they are involved in public and private law cases
  • Family Justice Service

Family Justice service

  • A Family Justice Service should be established, sponsored by the Ministry of Justice, with strong ties at both Ministerial and official level with the Department for Education and Welsh Government.
  • The Family Justice Service should be responsible for the budgets for court social work services in England, mediation, out of court resolution services and, potentially over time, experts and solicitors for children

Judiciary / the court

  • The judiciary should aim to ensure judicial continuity in all family cases (including in the High Court
  • A single family court, with a single point of entry, should replace the current three tiers of court. All levels of family judiciary (including magistrates) should sit in the family court and work should be allocated according to case complexity
  • The Family Division of the High Court should remain, with exclusive jurisdiction over cases involving the inherent jurisdiction and international work that has been prescribed by the President of the Family Division as being reserved to it
  • All other matters should be heard in the single family court, with High Court judges sitting in that court to hear the most complex cases and issues

Public law

  • When determining whether a care order is in a child’s best interests the court will not normally need to scrutinise the full detail of a local authority care plan for a child. Instead the court should consider only the core or essential components of a child’s plan
  • Government should legislate to provide a power to set a time limit on care proceedings. The limit should be specified in secondary legislation to provide flexibility. There should be transitional provisions
  • The time limit for the completion of care and supervision proceedings should be set at six months.
  • To achieve the time limit would be the responsibility of the trial judge. Extensions to the six month time limit will be allowed only by exception. A trial judge proposing to extend a case beyond six months would need to seek the agreement of the Designated Family Judge / Family Presiding Judge as appropriate

Expert witnesses

Primary legislation should reinforce that in commissioning an expert’s report regard must be had to the impact of delay on the welfare of the child. It should also assert that expert testimony should be commissioned only where necessary to resolve the case. The Family Procedure Rules would need to be amended to reflect the primary legislation

Private law

  • The need for grandparents to apply for leave of the court before making an application for contact should remain
  • Parents should be encouraged to develop a Parenting Agreement to set out arrangements for the care of their children post separation.
  • Government and the judiciary should consider how a signed Parenting Agreement could have evidential weight in any subsequent parental dispute;
  • Government should repeal the provision for residence and contact orders in the Children Act 1989;
  • Government should develop a child arrangements order, which would set out arrangements for the upbringing of a child when court determination of disputes related to the care of children is required;
  • Where a father would require parental responsibility to fulfil the requirement of care as set out in the order, the court would also make a parental responsibility order.
  • The First Hearing Dispute Resolution Appointment should be retained. Parenting Agreements could also be helpful at this stage. Where further court involvement is required after this, the judge should allocate the case to either the simple or complex track according to complexity.

Dispute resolution

  • Government should establish an online information hub and helpline to give information and support for couples to help them resolve issues following divorce or separation outside court;
  • ‘Alternative dispute resolution’ should be rebranded as ‘Dispute Resolution Services’, in order to minimise a deterrent to its use
  • The government and the judiciary should actively consider how children and vulnerable witnesses may be protected when giving evidence in family proceedings.

Divorce

  • The process for initiating divorce should begin with the online hub and should be dealt with administratively by the courts, unless the divorce is disputed
  • People in dispute about money or property should be expected to access the information hub and should be required to be assessed for mediation

 

The Review panel explicitly recognises that the supply of properly qualified family lawyers is ‘vital’ to the protection of children.  It further recognises the important role which lawyers play in ensuring the speedy resolution of cases, in supporting families to negotiate settlements and in narrowing issues where matters are contested.   It expresses its concerns about the impact of proposed legal aid changes on the functioning of the courts.

 

The full report can be accessed from the Ministry of Justice website.

The Family Justice Review Panel has fully involved the FLBA, throughout the last 18 months, as it has carried out its research and analysis.  We have been invited to give oral and written evidence to the panel on several occasions; our views on discrete topics have been sought in more informal workshops, and meetings. David Norgrove spoke at our conference at Cumberland Lodge in May 2011 shortly after the interim report was published, and is to be one of the speakers at the Bar Debate, being organised by the Bar Council (in liaison with the FLBA) at Gray’s Inn on 16th November 2011, under the banner “Broken Society; Broken Families: what next?”