August and September have both been and gone. I trust you all enjoyed a most excellent summer break. But, sadly, the summer is now at an end, and autumn and the Michaelmas Term is upon us. A new legal year beckons. And we are firmly into conference mode: political (for those who are interested in such things) and professional (with both the Bar and Young Bar Conference in London and the FLBA National Conference in Birmingham to come).
This is my seventh FLBMail as chairman of the FLBA.
As I write on Sunday morning, the garden is bathed in weak sunshine, although we have enjoyed more than our fair share of rain over the weekend in London, N1. The last few white roses are a reminder of a good summer, although the lawn is looking a little care worn. And the leaves are starting to fall.
Much has happened since I last wrote.
I have some further observations to make about the 14th View from the President’s Chambers later in this FLBMail, but I want to start with the further statement (the 15th View) issued by the President on 20 September 2016 entitled Care Cases – The Looming Crisis.
If you haven’t read it, you must. I attach the link. It is not just about care cases, it is about the future viability and sustainability of the Family Court.
Having analysed the figures year on year, the President reports that by the end of the current year (i.e. 2016-17) the number of new care cases entering the system will have more than doubled in the ten years since 2006-7. Assuming a modest annual 10% increase over the next three years, by 2019-20 the figure will have almost trebled since 2006-7 and be nudging 20,000 per annum. If the current annual rate of increase of 20% were to continue for the next three years, by 2019-20 the figure would have climbed to over 25,000. That is an astonishing figure and compares with just 6,786 new care cases in 2006-7.
In short, as the President observes, ‘we face a clear and imminent crisis…for which we are ill-prepared and where there is no clear strategy to manage the crisis’.
Such observations are unprecedented in my experience.
We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.
Perhaps understandably, the President is constrained to acknowledge that at least in the short-term there is unlikely to be any increase in judicial resources. Everyone who uses the family courts on a daily basis – whether as judge, advocate or lay client – knows that the system is already massively stretched (I hesitate to say to near breaking point). I hope that doesn’t sound too defeatist? It is not intended to be. Rather it is an acknowledgement of the reality of the enormous challenge that we all face day in, day out simply to get cases heard. Delay is now endemic at all levels (as the recent Court of Appeal consultation made plain). This, perhaps, is particularly acute in family cases, in which there is an over-abundance of litigants in person, particularly at appeal court level.
And so our overlords and paymasters at the Ministry of Justice and at the Treasury need to take notice. I repeat: the family courts face a clear and imminent crisis which has to be addressed. So let me be bold, and I hope not too obviously naïve:
As Chairman of the Family Law Bar Association, I call on government to take notice, act now and inject urgently needed additional funds into the family justice system.
I don’t, of course, ignore the £700 million – or is it now £1 billion? – to be invested across the wider court estate to modernise and digitise procedures (including setting up the much heralded On-line Court). This is much welcomed, long overdue, and makes up for years of under-investment. And it probably (i.e. definitely) won’t be repeated any time soon. But what is actually needed is extra funding year-on-year, to ensure we have more specialised family judges, both nationally and locally, so cases can be processed properly, in something approaching a timely fashion.
And perhaps some public acknowledgement or even a response – i.e. any response – to the President’s statement would be a good start? I’m not aware that any has yet been forthcoming.
But enough of that, at least for now. Let us turn to some more positive news.
Recent Appointments and a Retirement
I am delighted to offer warmest congratulations to Mr Justice (Andrew) Moylan upon his appointment to the Court of Appeal. This is tremendously good news, and I have no doubt at all that Sir Andrew will make an excellent appellate judge. As a former treasurer, and now a loyal supporter of the FLBA, Sir Andrew will be formally sworn in as a Lord Justice of Appeal in March 2017, and I look forward to congratulating him then formally on behalf of the family bar.
So too, I offer sincere congratulations to Mr Nicholas Francis QC upon his appointment to the High Court Bench. Nick has enjoyed a most highly successful career at 29 Bedford Row, and latterly has gained a very well-deserved reputation as an excellent and extremely user-friendly deputy judge. He will be a terrific addition to the High Court Bench and will be formally sworn in by the Lord Chief Justice at the Royal Courts of Justice (Court 4) on Friday 7 October 2016 at 9.45am. Please do attend if you can.
And last, but not least, quietly, and without any formal valediction, Mr Justice (Roderic) Wood retired this week from the High Court Bench. Sir Roderic enjoyed a highly successful career (latterly) at 1 King’s Bench Walk, before being appointed as a Circuit Judge in 2002 and then a High Court Judge in 2004. I was fortunate to bump into Sir Roderic at the service at Westminster Abbey on Monday and offered him our very best wishes for a happy and very well deserved retirement.
Appeals to the Court of Appeal and to the High Court
As I am sure you are all aware, changes have been brought in this week in both the Court of Appeal and in the High Court in relation to the allocation and management of appeals. This FLBMail is only intended as a ‘heads-up’ and doubtless you will all wish to read the new rules and, in due course, the practice directions to inform yourselves of the precise detail. The changes affect only fresh appeals (i.e. those lodged after either 3 or 5 October 2016) and not those currently pending before the Court of Appeal.
In summary, all appeals from Circuit Judges and Recorders in cases not falling within Parts 4 and 5 of the Children Act 1989 (i.e. all private law cases, but not public law children cases, except (at least for now) secure accommodation orders) will now lie to the High Court and not to the Court of Appeal. Permission will still be required in the usual way, and the test for granting permission remains unchanged (i.e. a real prospect of success or some other good reason for granting permission). If permission is refused on the papers, the application for permission can still be renewed orally (unless the judge certifies the appeal is totally without merit). I am told that a new Practice Direction 30A will be issued ‘shortly’. The intention is that every notice of appeal will be considered by the allocated appeal judge for that week following receipt, who will case managing it in advance of the hearing at which the court will consider granting or refusing permission to appeal. There are new bespoke notices of appeal, respondent’s notices and notices of application which must be used in all future appeals.
In the Court of Appeal, although the consultation issued by Lord Dyson MR suggested that the threshold for granting permission to appeal would be raised (i.e. from a real prospect of success to a substantial prospect of success) it has not been, and, at least for the moment, it remains a real prospect of success. However, importantly, unless the single Lord Justice calls the case on for an oral hearing, there is no longer an automatic right to renew the application for permission to appeal orally if permission is refused on the papers. Substantial changes have also been made to CPR PD52C (which has been simplified and made more user-friendly).
What impact these changes will have remains to be seen. Even without raising the threshold for granting permission to appeal to the Court of Appeal, there is expected to be a significant reduction in the number of applications determined in court (often involving litigants in person, many of whom tended to renew as a matter of course). Conversely, by shifting responsibility for appeals in private law cases down onto the High Court, there will be an inevitable increase in its work load. We must all hope that this does not have too adverse an impact on the (long) delays already experienced at High Court level.
Those of you who undertake care cases will be aware of the pilots currently being undertaken around the country in relation to settlement conferences, equivalent to the FDR Appointment in private financial remedy cases. It is fair to say that views differ about the appropriateness and effectiveness of such hearings in the context of public law proceedings in which the state may be seeking to remove children permanently from their parents. The Association of Lawyers for Children, for example, has come out strongly against them, and has issued public guidance to its members accordingly. The FLBA will issue its response shortly. In his 14th View from the President’s Chambers, the President made some important observations about the conduct of these settlement conferences: (1) the process is entirely voluntary and consensual (i.e. every party has the right to decline to participate); (2) the process is entirely without prejudice (i.e. confidential); (3) settlement conferences are always conducted in the presence of the lawyer (i.e. judges do not, and must not, address the parties in the absence of their lawyers); (4) only in exceptional circumstances would it be appropriate for a judge to see one party alone together with their legal representative, and only then if all parties agreed. And finally, and most importantly the President has emphasised that the paramountcy principle, and the tandem model of representation of the child, applies as much during the pilot of the settlement conference process as to any other part of the public law system. This is something about which the President has recently reiterated he is not prepared to compromise. We share the President’s determination not to compromise over this fundamental precept.
Although the FLBA remains concerned as to how the efficacy of the current pilot scheme will be properly evaluated, we welcome and endorse the President’s observations in relation to the proper conduct of settlement conferences, to which all judges must surely have regard.
The Transparency Project has launched its Family Court Reporting Watch project this week, which will monitor the publication of judgments and media coverage of family courts in order to highlight and, where possible, secure corrections of inaccurate and misleading reporting. In addition, it will endeavour to explain complex or controversial cases for non-lawyers via clear explanatory blogs. This is a project which should be of interest to many (i.e. all) family law practitioners and deserves our support. The Transparency Project team (which includes our own Lucy Reed) can be contacted on Twitter at@seethrujustice or via its website at www.transparencyproject.org.uk
Forthcoming Conferences + AGM 2016
The FLBA National Conference 2016 will take place on Saturday 22 October 2016 at the Malmaison Hotel in Birmingham. I attach the programme. If you haven’t already booked, there are still a few places remaining for the conference and for the dinner on Saturday night. We are particularly fortunate to welcome Lord Justice (Andrew) McFarlane back to Birmingham as our keynote speaker. Do attend if you can. I am particularly grateful to Jeremy Weston QC and his regional committee for organising what I am sure is going to be an excellent conference. And please don’t forget that the FLBA’s Annual General Meeting will take place before the conference at 9am. The more the merrier (…please). I attach a further copy of the agenda.
The Annual Bar and Young Bar Conference 2016 takes place on Saturday 15 October 2016 at the Westminster Park Plaza Hotel. The theme is ‘Raising the Bar: Innovation and global opportunity for a forward thinking profession’. The keynote speaker is Sir Ernest Ryder, Senior President of Tribunals. I am very grateful to Sir Peter Singer, Gavin Smith and Duncan Brookes for presenting the FLBA’s specialist seminar ‘Arbitration and the modern advocate’. Again, please do attend if you can. It is not too late to sign up.
FLBA Committee Elections 2016
I am delighted to report that this year nine willing volunteer, eager beavers have put their names forward for election to six vacancies on the Committee, and so we shall be holding an election (hurrah!!). You should all have received the ballot paper and voting instructions. I would remind you that your votes must be returned by noon on Thursday 20 October 2016. Democracy is a splendid thing, and your vote is important to us.
FLBA Events in 2017
Three dates for your 2017 diary:
The FLBA Annual Dinner 2017 will be held in Middle Temple Hall on Friday 24 February 2017. I am delighted that Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales, has accepted an invitation to be our guest speaker.
The Cumberland Lodge Conference 2017 will take place on the weekend of Friday 5 to Sunday 7 May 2017.
The FLBA National Conference 2017 will take place on Saturday 4 November 2017 at The Grand Hotel in Brighton.
I wish you all a very enjoyable October. By the time I FLBMail you again on 1 November I shall have turned 50 (surely not, I hear you say) and it will only be 7½ weeks until Christmas. How time (and my life) flies by. What joy.
Please do not hesitate to email me directly in chambers at email@example.com, or call me on 020 7936 1500 if you have something you wish to communicate or simply get off your chest.
Administrative enquiries should be sent to Khadija Khan, at firstname.lastname@example.org or to 1 Garden Court, Temple, London EC4Y 9BJ.
Philip J Marshall QC