Thursday, 2 August 2012

A glance at Mr Justice Ryder's report on family justice

After the Family Justice Review reported, Mr Justice Ryder was tasked with preparing the response of the judiciary to the report.  This has been completed and is available -Judicial Proposals for the modernisation of family justice. (pdf 25 pages).

In preparing the response, Ryder J took part in some quite extensive consultation with over 5000 interested parties.  It is worthy of note that many of the events he attended were sponsored including the Law Society organising a series of seminars.  The proposals are independent of government though the government's legislative programme is not ignored.  That programme includes the Crime and Courts Bill and, later, there will be a Children and Families Bill.   The Crime and Courts Bill will create a single Family Court below the High Court.  The High Court (Family Division) is not to be absorbed into the new family court though High Court judges will sit in the family court as required.

The principal points of emphasis in Ryder J's document are bringing about strong judicial leadership and management together with
robust case management (including a welfare timetable for each child).  Ryder proposes that implementation be in two phases.  First, putting in place the leadership and management principles to prepare for the new family court.  This phase to be completed by the end of 2013.  Secondly, in2013-14, prepare for the Children and Families Bill becoming law.  This phase will involve judicial training.  It is in the Children and Families Bill that the emphasis on care cases being completed in 26 weeks (with an "exceptional case" provision) will appear.

There will be new judicial guidance and procedures relating to allocation of cases to appropriate levels - judges, magistrates and legal advisers.  Judicial continuity in each case is to be the norm.

Expert reports will not be called for unless there is some issue which the court is unable to decide for itself.  The basic question will be - is the report really necessary to decide the case?

In relation to "public law" cases - (i.e. those involving local authorities such as care proceedings) - the judge will assume an investigative role.

In private law cases - (e.g. disputed contact with a child) - Ryder J has recognised that there will be huge increase in self-represented litigants.  This is because, from 1st April 2013, legal aid in private law cases will almost entirely disappear.  Such litigants will need help and Ryder has indicated that new materials will be prepared to assist them and also MacKenzie friends.

How will the Voice of the Child be heard?  This is addressed in paragraphs 65 and 66 which I reproduce here:

65.  Although not directed at the judiciary, the recommendations of the Family Justice Review relating to the voice of the child deserve careful consideration and are agreed. In particular, the respect which ought to be accorded to the United Nations Convention on the Rights of the Child 1989 should be demonstrated by:

• An engagement with children to facilitate their understanding of the process of proceedings where that is coincident with their welfare
• The ascertainment of a child’s wishes and feelings and an opportunity to be heard, where the child wishes it; and
• An explanation for every child of the decision of the court.

The National Assembly for Wales has passed the Rights of Children and Young Persons (Wales) Measure 2011, under which the Welsh Government is required to produce a Children’s Scheme setting out arrangements that are put in place to ensure compliance with a statutory duty on Welsh Ministers to have due regard to the UNRC which will include the functions of Welsh Ministers and Cafcass Cymru.

66. There are cogent arguments raised about the confidentiality of a child’s private and family information in both public and private law family proceedings. The same arguments arise in respect of the private and family information relating to adults involved in all family proceedings. Balanced against that is the need for a Family Court to explain and demonstrate its decision-making. Proposals will be developed to require case management decisions that involve adjournments for delay and the use of experts to be explained in publicly available rulings. The aspiration is that over time the majority of judgments and reasons can be handed down in an anonymous form and with sufficient protections by agreed redactions to protect the privacy of individuals, especially children.

The Crime and Courts Bill will create a family court for England and Wales.  However, some aspects of family law in Wales will differ from England.  This does not, I'm afraid, make a great deal of sense to me though it is a consequence of devolution to Wales - see post last December on the Rights of Children

See the Judiciary website for the announcement of Ryder J's report and also worth reading is Family Law Week.

Further commentary on Ryder J's proposals may be read at Marilyn Stowe blog and at Family Lore

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