This is the text of a speech delivered on 22 February 2013 at Middle Temple Hall
Mr Chairman, Madam Vice Chairman, Officers and Members of the Family Law Bar Association, Former Presidents of the Family Division, Ladies and Gentlemen –
It is three years since I last stood here to speak to you. I had recently left the Division after what I told you had been the most enjoyable 9 years of my entire professional life. Since then much has happened. Two Presidents have retired and I find myself here tonight, where I never expected to be, and in circumstances we must all regret; for it saddens me, as I am sure it saddens all of us, that my predecessor, Sir Nicholas Wall was not able to finish the great task to which he had so appropriately been appointed and to which he had so much more to contribute than I could ever hope to. I have been privileged to do some very interesting and important things in other places since I was last here, but when I returned last month I felt as if I was coming home.
We live in interesting and challenging times. The family justice system is embarking upon a process of reform which is little short of revolutionary and in which we must all play our part. Like ancient Gaul it is divided into three parts. First, there is the creation of the new single Family Court which, once the Crime and Courts Bill completes its progress through Parliament, is likely to come into existence in April 2014. It is some forty years since such a court was recommended by Sir Morris Finer and he, alas, did not live to see his recommendations bear fruit – such is the snail-like pace of so much legal reform in this country. When it opens its doors, the Family Court will include, wherever possible sitting under the same roof, judges from every tier of the judiciary: High Courts Judges, Circuit Judges, District Judges and Magistrates. And it will benefit from unified systems of administration and listing. Here in London there will be immediate and highly visible changes: there is to be a brand new Family Court in Docklands serving the east of the Metropolis and, in due course, a new Family Court in the west of London. There will be significant changes at First Avenue House, the Principal Registry of the Family Division. By April 2014, the Court of Protection and the Inner London Family Proceedings Court (Wells Street) will have moved in and part of the work will have been transferred to the new court in Docklands.
The second strand in the reform process is the product of the work done for the Family Justice Review by David Norgrove, ably assisted by McFarlane LJ, now being carried forward as to part in the Children and Families Bill recently introduced into Parliament and as to part under the supervision of Ryder J as Judge in Charge of Modernisation. We all owe an immense debt to Ernest. Without him I simply do not know where we would be.
The third strand has to do with transparency. I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well underway. I hope to be in a position to make important announcements in the near future.
I know that much of this programme of reform causes concern to some of the most thoughtful and conscientious family justice professionals. But we must do the very best we can with what we have. Where battles have been fought and lost we must move on. We have to realise that public finances remain in a dire state and that asking for more money, more judges, more this, more that, is simply crying for the moon. Realistically we must steel ourselves for further cuts; our task is to ensure that greater efficiencies in the family justice system minimise the impacts of these cuts on the families we serve.
In the field of private law the immediate concern, and it is understandably a matter of the greatest concern to all of you, is the likely effects we will be seeing this April when the restrictions on public funding begin to bite. The courts will have to identify innovative ways of handing large numbers of litigants in person; the legal profession will have to think of innovative ways to assist those who no longer have public funding. You must never forget that, as one door closes, another opens. ADR – mediation, collaborative law, arbitration, perhaps on the IFLA model or following the approach recently adopted by Baker J – will I suspect play an increasingly significant role in your professional lives. And you may wish to think of ways in which specific pieces of assistance – for example assisting in the drafting of a Form E – could be provided at a modest fixed fee to someone otherwise acting in person.
In the field of public law, concerns, I suspect, focus in particular on proposed statutory principles that care cases are to be concluded within 26 weeks and that expert evidence is to be restricted to what is “necessary”. Let me absolutely clear: I do not accept that either of these reforms, in my view essential reforms, will prejudice the quality of justice or the interests of those who appear before us. We can and must get a grip on our excessive and in many instances unnecessary use of experts. We can and must reduce the excessive length of far too many care cases. A comparatively small number of exceptional cases apart, we can and must meet the 26 week limit. We can, because various pilots and initiatives are not merely showing us that it can be done but, even more important, showing us how it can be done. We must, because if we do not, government and society will finally lose patience with us. I believe it can be done and I am determined to do everything in my power to make sure that it is.
Will you allow me to repeat some of what I said last time I was here. I came among you 13 years ago very much as an outsider, armed with what, no doubt, from your perspective were some rather curious ideas – and I am not referring only to bundles. But I was immediately made welcome, made to feel an old friend, by all of you.
Arriving originally as an outsider I can perhaps appreciate better than most just how very special the Family Bar is. There is nothing I know of in any other area of the law to match the dedication, commitment, compassion, empathy and, if you will let me say it, the sheer goodness of all the many professionals who form what I always think of as the Family Justice Family.
On this of all nights, other professionals in the Family Justice Family will, I hope, forgive me if I say a special word to the Family Bar: your commitment to some of the most disadvantaged people in our society; your endless cheerfulness when handling clients and cases that would deter and demoralise ordinary mortals; your incredible hard work; your consistent willingness to go the extra mile. And on top of all that, the constant and unstinting help you give the judges.
In the very first judgment I gave as President, at a time when you probably feel under enormous pressure, I was at pains to point our just how important is the work you do:
“the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them … Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented … May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.”
Now that was said in the context of a care case but the same goes for all the work you do. Let me tell you what happened in a case which to me exemplifies the essence of the Bar.
I do not know if she is here tonight and will not embarrass her by giving her name though it will soon enough be recorded for posterity in the pages of the Family Law Reports. Junior counsel went down to Southend County Court to do a fairly run-of-the-mill contact case. It had some unusual features but I do not imagine that counsel was prepared for what happened. The Recorder stopped her when she began to embark upon a perfectly proper line of cross-examination. The transcript records what happened. Counsel soldiered on for a while. As the short adjournment approached the Recorder said “I am going to curtail your cross-examination …” Counsel made clear that this was hampering her ability to put her client’s case. The Recorder was unmoved: “Well that may be but … we are where we are.”
Undaunted, counsel advised an appeal, which succeeded. We said that by preventing her cross-examining as she wished the Recorder had disabled himself from carrying out the task required of him and denied the father and the child a fair hearing. Of counsel, I said this:
“[she] is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.”
That is what the Family Bar is all about: commitment to the client and to fair process; a clear head; and moral courage.
But it is not just the Family Bar of course. The same goes for all the other professionals whose unceasing labours do so much unsung good for so many – the solicitors, the guardians, the social workers, the experts and everyone else without whose enthusiastic work the Family Justice system simply could not cope.
I have embarked upon a tour which by the end of the year will, I hope, have taken me to every care centre in the country. I started on the South Eastern Circuit; I was in the West County last week; next week I am in the North East; and a fortnight later in South Wales. Wherever I go I make a point of trying to meet everyone involved in the Family Justice system: judges, court staff, magistrates, justices’ clerks and legal advisers, local authorities and CAFCASS. I have been immensely cheered by the enthusiasm with which they are all working collaboratively, determined to make a reality of reforms which they have eagerly embraced. I hold open meetings for the legal professions to which everyone is invited and where everyone is free to speak their mind. Again, I have been cheered by the large numbers who have turned out and by the very positive dialogue that has been possible. I am grateful to all of them and to all of you.
We are embarked upon a great task of immense importance. My ambition is that in five or ten years’ time each of us will be able to look back and say ‘I played my part in making all this possible.’ One day when the years have taken their toll and, like all lawyers of a certain age, you reminisce about the good old days, your pupil’s pupil will listen with astonishment as you describe care cases which took 50, 60, 70 or 80 weeks. Perhaps they will even be mildly surprised at the modesty of our current ambition that care cases should take no more than 26 weeks.
Failure is not an option; I am confident that, with your assistance, we will be successful.