Friday, 30 December 2011

The Family Justice Review (2) - Main recommendations

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   It is a lengthy and detailed report and builds upon an Interim Report issued earlier this year.  The Review was conducted against the background of certain "guiding principles" set out by the commissioning Ministers - please see Part 1 of this post.

: The Recommendations :

The recommendations are set out at pages 26 to 36 of the report.  For the reasoning underlying particular recommendations it is necessary to look at the subsequent Chapters.  What follows is a reasonably detailed look at the main recommendations.

The child’s voice: pages 45-49 - the report seeks to ensure that children’s interests are truly central to the operation of the family justice system.  Thus, children should be given age appropriate information to explain what is happening when they are involved in public and private law cases and they should be supported so that they are able to make their views known.  The Family Justice Service (recommended by the Review) would take the lead in this area. 
The UK Government should
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.
A recommendation which will be welcomed is that charges to local authorities for public law applications and to local authorities and Cafcass for police checks in public and private law cases should be removed.  Such charges were imposed by the Labour Government and were thought to have deterred some Local Authorities from instituting proceedings.

A duty should be placed on the Family Justice Service to safeguard and promote the welfare of children in performing its functions. An annual report should set out how this duty has been met.

An integrated IT system should be developed for use in the Family Justice Service and wider family justice agencies. This will need investment. In the meanwhile government should conduct an urgent review of how better use could be made of existing systems.  (It is probably unlikely that government will wish to put yet more money into costly IT provision.  Time will tell).

The Family Justice Service should develop and monitor national quality standards for system wide processes, based on local knowledge and the experiences of service users.  The Family Justice Service should coordinate a system wide approach to research and evaluation, supported by a dedicated research budget (amalgamated from the different bodies that currently commission research).  The Family Justice Service should review and consider how research should be transmitted around the family justice system.

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.

The courts: pages 72 - 79 - the review made some recommendations aimed at trying to ensure that the courts are as efficient and user friendly as possible.  Presently, family justice is delivered across the three levels of court: High Court, County Courts and Family Proceedings Courts.  Depending on factors such as complexity. cases are allocated to the appropriate level and there are procedures for transfer of cases between the levels.  

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.

: Recommendations relating to Public Law cases :

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) [1994] 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 [2002] 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."
Controversially, the review seeks to "refocus the court on the core issues of the care plan."  The courts must continue to play a central role in public law in England and Wales.  However, they "should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority."  "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. We propose that these are:  planned return of the child to their family; a plan to place (or explore placing) a child with family or friends; alternative care arrangements; and contact with birth family to the extent of deciding whether that should be regular, limited or none." 

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. 

Contact with siblings - the review recommended further consultation on whether section 34 of the Children Act 1989 should be amended to promote reasonable contact with siblings, and to allow siblings to apply for contact orders without leave of the court.

The relationship between courts and local authorities: pages 101 - 103 - The Review calls for dialogue both nationally and locally between the judiciary and local authorities. The Family Justice Service should facilitate this. Designated Family Judges and the Director of Children’s Services / Director of Social Services should meet regularly to discuss issues.
 Local authorities and the judiciary need to debate the variability of local authority practice in relation to threshold decisions and when they trigger care applications. This again requires discussion at national and local level. Government should support these discussions through a continuing programme of analysis and research.  The decision as to when to initiate court proceedings can be very difficult and, if left too late, could have very serious consequences - e.g. case of Baby P.

Case management: pages 103 - 112 - The review noted that different courts take different approaches to case management in public law and calls for robust case management. These need corralling, researching and promulgating by the judiciary to share best practice and ensure consistency.
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 monthsJudges must set firm timetables for cases. Timetabling and case management decisions must be child focused and made with explicit reference to the child’s needs and timescales. There is a strong case for this responsibility to be recognised explicitly in primary legislation.

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. 

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.  

The requirement to shoe-horn cases into a 6 month period is, however laudable, perhaps unlikely to be achieved in more complex cases or it may be achieved but only by limiting the search for suitable persons - often family members - who might be able to care for the child.  Considerable delay can be introduced to cases by trying to identify possible carers and then the process of considering their suitability.  A further issue might be that, even if the court proceedings conclude in 6 months or less, in some instances the child may then spend considerably longer than that awaiting placement for adoption.  There is a shortage of adopters (e.g. Action for Children).  Also, the older the child the harder it can be to find a placement.  Placing two or more siblings together can prove to be exceptionally difficult.

Local authority practice: pages 112 - 117 - some recommendations aim to improve the quality of local authority social services and their engagement in proceedings. 
Expert witnesses: pages 117 - 126 - Family cases can become unduly extended if reports are requested from expert witnesses.  For example, it is far from unusual for requests to be made for reports from psychiatrists, other medical professionals, independent social workers etc.  The review calls for primary legislation to reinforce the point 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.

Whilst the review sees this as necessary, it is already good practice at the moment.  Judges already scrutinise carefully requests for additional expert reports.  The review continues to say that the court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved. Independent social workers should be employed only exceptionally.

Judges should direct the process of agreeing and instructing expert witnesses as a fundamental part of their responsibility for case management. Judges should set out in the order giving permission for the commissioning of the expert witness the questions on which the expert witness should focus.

There are some other recommendations relating to experts which are not covered here.

Representation of children: pages 126 - 129 - recommendations follow to promote the effective operation of the tandem model of children’s representation.  "Tandem" refers to the fact that the child in care proceedings is represented by a Guardian and a Solicitor.  Controversially, the review recommends limiting the Guardian's role in scrutiny of the care plan so that it is line with the reduced court's role.

Alternatives to conventional court proceedings: pages 129 - 132 - a number of recommendations seek to encourage the development of approaches and programmes that better support families while avoiding or reducing the need for distressing and costly court cases.  In what may be music to the ears of certain Ministers, the review stated that "a pilot on the use of formal mediation approaches in public law proceedings should be established."

: Recommendations relating to Private Law cases : 

Making parental responsibility work: pages 134 - 150 - A key principle of private family law is that both parents have a responsibility to ensure their child has the emotional, financial and practical support to thrive. These duties attach to those who have "parental responsibility."  Recommendations are made which are intended to enable parents to reach agreements following separation, while ensuring that the child’s welfare remains paramount.  

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.

The report recommends retaining the requirement for grandparents to apply for leave of the court before making an application for contact.

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 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.  These orders would replace residence and contact orders.   However,  Prohibited steps orders and specific issue orders should be retained for discrete issues where a child arrangements order is not appropriate.

The new child arrangements order should be available to fathers without parental responsibility, as well as those who already hold parental responsibility, and to wider family members with the permission of the court.

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.  Where the order requires wider family members to be able to exercise parental responsibility, the court would make an order that that person should have parental responsibility for the duration of the order.

The facility to remove the child from the jurisdiction of England and Wales for up to 28 days without the agreement of all others with parental responsibility or a court order should remain.

The provision restricting those with parental responsibility from changing the child’s surname without the agreement of all others with parental responsibility or a court order should remain.

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.

Those parents who were still unable to agree should next attend a Separated Parents Information Programme and thereafter if necessary mediation or other dispute resolution service. 

Attendance at a Mediation Information and Assessment Meeting and Separated Parent Information Programme should be required of anyone wishing to make a court application. This cannot be required, but should be expected, of respondents.  

Judges should retain the power to order parties to attend a mediation information session and Separated Parents Information Programmes, and may make cost orders where it is felt that one party has behaved unreasonably.

Where agreement could not be reached, having been given a certificate by the mediator, one or both of the parties would be able to apply to court.

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.

Children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it.  The government and the judiciary should actively consider how children and vulnerable witnesses may be protected when giving evidence in family proceedings.

Where an order is breached within the first year, the case should go straight back to court to the same judge to resolve the matter swiftly. The current enforcement powers should be available. The case should be heard within a fixed number of days, with the dispute resolved at a single hearing. If an order is breached after 12 months, the parties should be expected to return to Dispute Resolution Services before returning to court to seek enforcement.

There should be no link of any kind between contact and maintenance.

Divorce and financial arrangements: pages 172 - 178  - The final set of recommendations relate to divorce and financial arrangements and are intended to enable divorcing couples to dissolve their marriage efficiently and, wherever possible, to reach an agreement on financial arrangements without using the court.  These are not discussed further here but reference to "Family Law Arbitration: a new dawn for ADR" (Marilyn Stowe blog) is recommended.

"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.

Other links:

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

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