closely monitor the effect of the Rights of Children and Young Persons Measure (Wales) 2011. This is an important point - see Law and Lawyers "Rights of Children" - but it seems a pity that the Review did not recommend similar legislation for England.
Family Justice Service: pages 49 - 63 - the review wished to see the creation of a Family Justice Service which would be sponsored by the Ministry of Justice and have strong ties to the Department for Education and Welsh Government. This service would have responsibility 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.
The recommendation for a Family Justice Service has been attacked by the President of the Family Division - Lord Justice Wall who said that the service is "neither practical nor necessary. " Wall LJ sees it as "a new independent bureaucracy” which “would not be cost-effective nor would it benefit family justice (or the administration of justice in general) in the long-term.” He would prefer that the Norgrove reforms be implemented by the family business authority (FBA) within the existing courts and tribunal service. See Solicitor's Journal 30th November 2011.
This broadside from such a senior member of the judiciary may have holed the family justice service proposal along the waterline. Add to that the present government's aim to reduce the number of "public bodies", and one must wonder whether this proposal will sink below the waves.
Judicial leadership and culture: pages 63 - 70 - The review directed some recommendations at the judiciary and pointed out that robust judicial leadership was necessary to bring about what the review referred to as a "culture change."
An important issue in family cases is "judicial continuity." Cases do not benefit from frequent changes of judge or magistrates. The review recommends that the judiciary should aim to ensure judicial continuity in all family cases. There was also a call for specialisation in family matters not just for professional judges but also magistrates. Hitherto, magistrates collectively appear to have resisted specialisation even though it is permitted by statutory rules relating to authorisation of magistrates for family work.
Unsurprisingly, the review recommended a single family court with a single point for case commencement ("point of entry"). This would 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. However, the report adds that the Family Division of the High Court should remain, with exclusive jurisdiction over cases involving the inherent jurisdiction (of the High Court) 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.
Interestingly, in 2005, the Labour Government conducted a consultation into whether there should be a Single CIVIL court - see here. This concluded that "reform to create single Civil and Family Courts with unified jurisdictions would be feasible and beneficial" but noted that it would require primary legislation. Had this proceeded, the reform would have been very far-reaching. However, a report by retired Lord Justice of Appeal Sir Henry Brooke effectively ruled out a single civil court - see Judiciary / Reports and the masterful Brooke Report (January 2008). Of course, the Norgrove Review proposal is nowhere near as far-reaching as that and, in general, the single family court proposal appears to have been welcomed.
The idea of replacing the present family court system with some form of Tribunal was rejected at an early stage by Norgrove - see Interim Report at paras. 4.140-143 and 5.32
Workforce: pages 79 - 89 - the next recommendations concern "workforce" and aim to ensure that the people who work in the family justice system have the skills and knowledge they need. Key to these recommendations would be the proposed Family Justice Service. Other recommendations concern the Judicial College and training of judges, magistrates and others. The recommendations in this part of the report seem to be uncontroversial.
The role of the court: pages 94 - 101 - At present, the family courts have an important role in scrutiny of "care plans" which are prepared in public law proceedings. The requirement for such judicial scrutiny was developed by case law and does not directly appear in the legislation (e.g. Children Act 1989). Mr Justice Wall (and others) were instrumental in bringing this about - see, for example, Re J (Minors) (Care: Care Plan)  1 FLR 253 at 261 where Wall J stated - "Local authorities should thus be left in no doubt at all that the care plan will in each case be subject to rigorous scrutiny." Once a care order is made, the court's role ends - it is "functus officio" - and matters are left to the local authority which could alter the care plan and, in practice, local authorities are required to keep care plans under review. The decision of the House of Lords in Re S and Re W  UKHL 10 is instructive as to the role of the court. Lord Nicholls said - "I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal's initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities' discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities."
This proposal seems unfortunate. Many "cash-strapped" local authorities operate with minimal staff and resources and, almost daily, we see reports of services having to be cut. Care proceedings are a major and crucial stage in the lives of too many children today. The requirement for judicial scrutiny of the care plan should not be limited in the way suggested given that it offers an objective / unbiased view as to the local authority's plans for the child should the court grant a care order. On this, see Law Society Gazette 10th November 2011.
The Public Law Outline provides a solid basis for child focused case management. Inconsistency in its implementation across courts is not acceptable and we encourage the senior judiciary to insist that all courts follow it. The Public Law Outline will need to be remodelled to accommodate the implementation of time limits in cases. The judiciary should consult widely with all stakeholders to inform this remodelling. New approaches should be tested as part of this process.
The requirement to renew interim care orders after eight weeks and then every four weeks should be amended. Judges should be allowed discretion to grant interim orders for the time they see fit subject to a maximum of six months and not beyond the time limit for the case. The court’s power to renew should be tied to their power to extend proceedings beyond the time limit.
The requirement that local authority adoption panels should consider the suitability for adoption of a child whose case is before the court should be removed.
There are some other recommendations relating to experts which are not covered here.
Many people, mostly fathers who have struggled to gain contact with their children, have viewed the family justice system as biased against them and have pressed for a legal presumption that there should be either substantial sharing of time with the child or equal time. The review came out against this stating - "No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents." This matter is discussed in an item in The Guardian 4th November 2011 - Phillipa Newis - "Austerity's dark cloud overshadows David Norgrove's Family Justice Review." Essentially, the view was taken that a presumption could well create more conflict between the separated parents and also detract from the key focus on the welfare of the child.
A coherent process for dispute resolution: pages 150 - 172 - Of course, as an ideal, adults would resolve their disputes out of court and the review makes recommendations to encourage this. These include:
- an online information hub and helpline;
- rebranding "Alternative Dispute Resolution" as ‘Dispute Resolution Services"
- where intervention is necessary, expecting separating parents to attend a session with a mediator who would assess the most appropriate intervention including mediation and collaborative law, or whether the risks of domestic violence, imbalance between the parties or child protection issues require immediate referral to the family court; and provide information on local Dispute Resolution Services and how they could support parties to resolve disputes.
Hence, the review has come down heavily in favour of requiring attendance at mediation before private law court proceedings may commence. The certificate of the mediator would be required. If the case does get to court, the review goes on to recommend that the case be allocated to either a simple track or complex track depending on the nature of the case. The judge would allocate the case at a First Hearing Dispute Resolution Appointment.
"Dispute resolution services" (to use Norgrove's preferred language) has limitations though it is obviously attractive to government which is seeking to limit legal aid expenditure. As the Marilyn Stowe blog says:
"The Government’s enthusiasm for mediation should, ... , be taken with a pinch of salt. The removal of legal aid for most people in private family disputes means the Government are bound to push the benefits of alternative processes. In doing so they have ignored all the pitfalls that professionals in the field know of, and that have tempered their own enthusiasm for ADR. And all the enthusiasm in the world can’t make an inherently defective scheme work in great numbers."
The government's detailed response to Norgrove is awaited though, given the government's already stated position, it may be confidently said that they will embrace his ideas for "Dispute Resolution Services." It is also debatable whether the government will really wish to ensure provision of the mediation services which will be needed if the report's recommendations are to be successfully implemented.
They government is perhaps less likely to embrace the suggested Family Justice Service and, in this, they would appear to have a strong ally in Lord Justice Wall. However, the proposed service is quite central to the practical effectiveness of many of the recommendations.
Particularly problematic proposals appear to be the proposal to limit the court's (and guardian's) role in the scrutiny of care plans. A full reading of this detailed report is essential.
The Lawyer - Lawyers welcome Norgrove Report into family justice
Law Society Gazette - Guarded welcome for family justice review
Centre for Social Justice - Norgrove fails children by not giving fathers access rights