Wednesday, 28 December 2011

The Family Justice Review (1) - Overview and Terms of Reference

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   The report extends to 228 pages.  This was the second major report of the year relating to family law and justice; the other report being that by Professor Eileen Munro - see Law and Lawyers 10th May 2011 Munro Review on Child Protection.

The Family Justice Review was commissioned by the Secretaries of State for Justice and Education and also by the Welsh government Minister for Health and Social Services. The Terms of Reference of the Review are set out at Annex A to the report and are considered in this post (below).  Interestingly, the Terms of reference refer to certain "guiding principles."   These are now considered with my comments in brackets ( ).

The "Guiding Principles" as decreed by Ministers:

The interests of the child should be paramount in any decision affecting them.  (This reflects existing law  - Children Act 1989 s.1. and it is generally accepted that the interests of the child should remain central to decisions.  The present law gives little weight to others involved - e.g. grandparents etc.  For an interesting viewpoint, see
the the Marilyn Stowe blog - "The real reason why the Family Justice Review has failed" )

Delays in determining court applications to be kept to a minimum.  (Again, existing law has the general principle that delay is likely to prejudice the welfare of the child.  This does not necessarily mean that cases have to be rushed through.  Some delay in court proceedings is inevitable but all the available time should be used productively with a view to achieving a specific purpose).

The court's role should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so.  (The second limb of this sentence appears to emphasise the Right to Respect for Private and Family Life in the European Convention on Human Rights Article 8.   The first limb of the sentence appears to be aimed at limiting the scope of formal adjudication in the family courts). 

Individuals should have the right information and support to enable them to take responsibility for the consequences of their relationship breakdown.  (Few would disagree.  However, will it be made available in the present financial climate?).

The positive involvement of both parents following separation should be promoted.  (As a general statement this seems acceptable enough)

Mediation and similar support should be used as far as possible to support individuals themselves to reach agreement about arrangements, rather than having an arrangement imposed by the courts.  (For some, mediation or similar may assist them to reach agreement but this is often where the differences are relatively small.  Court imposed arrangements can be met with hostility by the adults in question but such arrangements often prove to be necessary due to the intransigence of those adults).   

The processes for resolving family disputes and agreeing future arrangements should be easy to understand, simple and efficient and transparent both to those involved and wider society.  (Family law is complex - extensive statute law and case law.  The "processes" for resolving disputes operate within this legal framework.  Nevertheless, where simplicity can be achieved then it should be).

Conflict between individuals should be minimised as far as possible.  (Few would disagree but the hostility can be at an advanced stage by the time the law becomes involved.  Nevertheless, there is much to be said for building upon areas - if any - of agreement).
The review should assess how the current system operates against these principles and make recommendations for reform in two core areas: the promotion of informed settlement and agreement; and management of the family justice system.  (Thus, the scope of the review was limited to two important areas which can be referred to simply as "settlement" and "management."  This reflects the government view that formal adjudication in the courts should be a last, rather than first, resort).

The Terms then moved on to ask the review to look at certain issues.
 The extent to which the adversarial nature of the court system is able to promote solutions and good quality family relationships in private law family cases and what alternative arrangements would be more effective in fostering lasting and positive solutions.  (The adversarial system is that developed by the common law - party versus party with the court as an objective participant.  The term is often used in opposition to inquisitorial process.  Family disputes are rarely handled entirely satisfactorily by either of those methods and, it may be, that they cannot be handled entirely satisfactorily by any method.  Again, the government's emphasis was on use of alternative methods for resolving problems thereby keeping cases out of court if at all possible.  However, even in the court setting, it is often possible to narrow down the issues so that the court has to formally adjudicate as little as possible.)

Examination of the options for introducing more inquisitorial elements into the family justice system for both public and private law cases.  (This may be problematic.  An inquisitorial approach is not necessarily preferable to the adversarial approach.  If the process were to be more inquisitorial, a great deal of work would need to go into selection and training of judges / magistrates.  Inquisitorial must not become dictatorial).

Whether there are areas of family work which could be dealt with more simply and effectively via an administrative, rather than court based process, and the exploration of what that administrative process might look like.  (It is necessary to identify any such areas.  It would be worth bearing in mind the "administrative processes" which applied in the Child Support Agency.  These were not entirely successful and changes were necessary and are on-going.  See Child Maintenance and Enforcement Commission which replaced the CSA).

How to increase the use of mediation when couples separate as a preferred alternative to court processes.
(This idea underlies much of the government's thinking.  They see it as cheaper but it may not necessarily prove to be so).

How to promote further contact rights for non resident parents and grandparents.  (In general, the child should know his or her wider family.  For a reason why grandparents require leave to become a party to a family case - see the judgment of Hedley J in Re P and L (Minors) at para. 9.  The need is to ensure that involvement of others in a child's life must always be a positive factor.  However, it is a fact that grandparents are often playing a greater role in the lives of children than may have been the case historically.)

Examination of the roles fulfilled by all of the different agencies and professionals in the family justice system, including consideration of the extent to which governance arrangements, relationships and accountabilities are clear and promote effective collaboration and operational efficiency. This will include looking at the roles carried out by Cafcass in England and by Cafcass Cymru.  (A big topic).

The Terms indicated that a panel would be required comprising independent representatives and senior representatives from Ministry of Justice, Department for Education and the Welsh Assembly Government.  (The membership of the Review - 10 persons in all - may be seen at para. 1.2 of the Report with their biographies at Annex B).
In examining these matters the Terms of Reference required the panel to obtain and consider the views of key stakeholders, including children and families, the judiciary, family lawyers, Cafcass practitioners and social workers. The Review was also expected to engage in wide consultation, to draw on relevant family justice research studies and literature, consider available qualitative and quantitative data and take into account international comparisons.
The Terms also stated that the weview should take account of value for money issues and resource considerations in making any recommendations. Recommendations should be costed and have regard to affordability.  (The thinking here links to the government proposals for legal aid reduction set out in their Legal Aid, Sentencing and Punishment of Offenders Bill - LASPO - Law and Lawyers 25th November).

: Recommendations : 

The final report contains an Executive Summary (page 5 to 25) and a list of recommendations (page 26 to 36).  

: Comment etc :

The Review Panel seems to have been constrained in two important aspects.  One, by the membership which included representatives of the commissioning government departmentsIt might have benefited from having more members with detailed knowledge of the day-to-day problems in present-day family law legal practice and procedure.  The other constraint was the terms of reference which seem to have precluded a thorough review of the complex law underlying decisions involving children and placed the emphasis on "informed settlement and agreement; and management of the family justice system."  Thus, the question of whether the substantive law itself continues to be "fit for purpose" has not had a central place in this review.

Part 2 of this post will look more closely at some of the report's recommendations.

The Lawyer - Lawyers welcome Norgrove report into family justice
Family Law - Family Justice Review published
Marilyn Stowe blog - "The real reason why the Family Justice Review has failed" - 

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