I have been modernised…

This week I attended a lecture by our new Designated Family Judge here in Bristol, His Honour Judge Wildblood QC, to inform the legal community about modernisation, the new PLO and how things will be in the new world order. Although some of the lecture dealt with local approach to particular issues, the majority of it will, I think, be illuminating for those practising further afield. So below are my notes of that lecture. Lawyers beware.

4 Concepts:

  • Communication
  • Collaboration (team work)
  • Change (recognise and accept)
  • Committment

New PLO due out 24/6/13, under Pt 36 FPR.

Family Justice Review noted that in Mar 11 average care case duration was 53 weeks. By time of  final report an average of 56 wks (61 in care centres).

Ryder’s role – guiding judiciaries response to the proposals NOT implementing Government policy.

Case Management system continues amended. Bristol stats : Cty Ct 34 weeks, Bristol FPC 30.4.

We MUST make it work.

FJR considered whether courts should be involved at all. This is the last chance for the court system. Time for debate about 26 weeks is past. Its happened. It is the law. Treat it as in force no. Do our utmost to implement overnight.

PLO in force 1 July – 26 weeks = deadline not target.

Family Court will be up and running by December 2013.

Gloucester issues 1100 private law cases, Bristol 1600 (p.a.?) – DFJs to draw submit proposals for structure for the local area by 14/6 – strong argumetn for keeping Gloucester as an issueing court.

New PLO – Day 1 LA to file and serve chronology, threshold, care plan, genogram, assessment and statement. Usually 2 years worth of neglect in a chronology is sufficient.

Thresholds – short with 5-6 allegations maximum. Separate particulars if necessary.

Social work statements – analysis not evidence (I have written “not evidence” in my note, I’m not sure that was said – I think it was my sardonic note to self)

Pre Proceedings Protocol being drawn up for Bristol area – aware some research is not supportive but this is based on mutuality, discussion and agreement. Expectations on both court and LA.

Pre Proceedings work will not be duplicated in proceedings unless necessary.

Structure:

  • 1st Case Management Hg Day 12 (FDA).
  • 2nd CMH (if required)
  • IRH
  • Final

LA compliance essential. Importance of pre proceedings work – but must ease path of overworked social worker.

Day 2 evidence (serve not file) with application. Minutes and records by list – disclose on request. Only last 2 years.

Must be sympathetic and realistic with LAs.

Allocation vital. In Bristol there will be a daily team meeting, and monthly meeting with Designated Family Judge (HHJ Wildblood QC) and Nominated Family Judge (HHJ Marston). Any appeals will go to DFJ or NFJ but they are hardly likely to arise.

Draft allocation criteria.

Magistrates – key role in private and public law. For real. Not less interesting work. A proper proportion of both public and private law, a significant amount of public law. In Bristol 23% care work is magistrates court. That will increase. They must be supported and helped by lawyers and judges. It’s no good complaining if you (we?) are not prepared to get stuck in and help. Can’t expect them to perform as lawyers without training.

1st CMH – deal with experts under Pt 25.

Oral information and CV NOT ON. Comply with the rules if you want to be heard. If you don’t I will take it out of the list or list it at 4.30 and that will ruin your day.

In Bristol at CMH we will list final hearing and IRH. We will not list final hearings at IRH stage as in some other areas. We will keep it under review. I acknowledge Bristol research concluded listing early didn’t speed up – but that was under the old PLO. Here we will list at 1st CMH. Do best we can. If don’t eye off ball. (note unclear).

Has been suggested IRH can be after week 20 – NO. It doesn’t allow for an effective IRH. IRH by week 18 if possible.

The DFJ and NFJ’s view is wholehearted support for v strong body of research re delay and impact on child. (note unclear – speaker referring to slide I could not read)

CMS was amended April 1 2013. Judges responsibility to record reasons. Please remind the judge.

Listing is a judicial act NOT an administrative act. If it is left to the parties please nominate one person only to communicate with the court.

Self reporting direction – is now default.

E-filing must be within 48 hours. If you need more time ask at the hearing or within 48 hours. If in default the party responsible will be called to attend court and explain. Just ask

CoA guidance expected (Munby) shortly. TG [2013] EWCA Civ 5 makes clear necessary is a significantly higher hurdle than reasonably required. Also:

  • strong case management
  • control of evidence essential part of it
  • particular responsibility re experts
  • support for 1st instance judges – robust but fair
  • Hoffmann in Piglowska v Piglowski re exercise of discretion. Appeals – generous ambit. You won’t be overturned unless the decision falls outwith the generous ambit.

Recently discussing with HHJ ? whether a psychologist be report should be limited to 5 or 10 pages. Put what they want in annexes. But need a condensed summary of conclusions.

If you want your head to remain on your shoulders follow local police protocols. Police disclosure may be reason for 2nd CMH.

People must come to IRH knowing what their case is and ready to record what the issues are at FH.

If listed at 10 you must be IN COURT at 10. It is not for the usher to find the parties. Ask for time.

You must be at court when ordered.

Production orders – be realistic about timings.

Placement – there is often a problem with parents who can’t be found to be notified of adoption proceedings. Standard direction at conclusion of care proceedings – parents must keep LA informed of address for purposes of adoption proceedings.

Final hearings – case summaries essential 48 hours before. Position statements required from all parties. Including G.

Bundles proposals – compliance is essential.

Guardian not seeing child and parents cannot be the basis of decision on welfare.

Subgroups -

on LiPs and how to achieve justice. LiPs are not a subculture – they are as entitled to justice as the represented. It is for us to ensure they get it. When I gave evidence it was exhausting, frightening and disempowering.

DJ Watkins – financial remedy subgroup

DJ Howell – private law

Late transfers from FPC – I may send it back.

Email – until the system is changed for judges in Bristol only – send all emails to J and court office. Must use secure email only. Data protection concerns. Subject line to include name of case name of judge and date of hearing.

Email – ONLY send case summary, skeleton, position statement, reports (not statements) which have been received within 7 days of the hearing, and other documents required by the judge.

Email is not a substitute for filing or hard copy. Don’t assume printing by the court. Do not send docs to J on morning of hearing. Send by 12 noon the day before at least. The court won’t print except a small number of pages in an emergency only. Any misuse of the system by any person will result in the facility being withdrawn and the email will be deleted and not read.

Thus endeth the lesson.

 

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18 thoughts on “I have been modernised…

  1. I am put in a mind of a fifth noun beginning with C, with only one syllable and it rhymes with clap . . .

  2. I love the ‘bundles’, “compliance is essential” in vain demand. It demonstrates nicely how after all this time of the authorities setting out the necessity of compliance to this rather simple but important direction, it is still routinely ignored by many lawyers. What hope for the rest of it?

    Nice to see the subhumans get a small mention (sorry subgroups (LIPs))….

  3. Philip Measures

    The danger here is whether this is a further largely unresearched initiative to get more children adopted quicker.

    It seems to me that we continue to lack any real research into the long-term benefits, or otherwise, of adoption and even a lack of what we mean when referring to adoption ‘breakdowns,’

    The whole nature versus nurture debate is ignored at our peril and unless, even in those Cases where permanent removal is the only viable option, there is far greater Adoption Support available then we will only build up future problems.

    The whole impact of the internet and social media needs addressing as adopted children are able to track down their birth parents far earlier and in an uncontrolled and unsupported manner which can be emotionally dangerous.

    When involved in making life-long and life-changing decisions we do young people no favours by rushing headlong into processes which are more government-driven than welfare-orientated.

    Solicitors representing children and young people as well as social workers and Guardians need to be able to demonstrate in-depth understanding of issues surrounding Attachment, Separation and Loss and be able to demonstrate that in-depth assessments have been undertaken and that Recommendations are also based on evidence-based Research.

  4. Strange that emails to both judge and court aren’t substitute for hard copy. Too much duplication and waste. About time courts came fully into 21st century.

  5. These proposals will work perfectly well, provided there are sufficient, well trained social workers able to access timely and skilled legal advice, that running a family law firm is economically viable under fixed fees and savage public funding cuts in a recession, that CAFCASS abandons proportionate working, that CJSM email works,lay clients all have mobile phones which function at all times of the night and day and the changes to part 25 and the drastically reduced remuneration of experts means there are sufficient numbers of quality experts to instruct. Of course, it is also necessary to believe that the research in which so much faith is invested is adequate and robust and that prolonged periods of pre-proceedings intervention is not as damaging for children as the proceedings themselves. And finally, I suppose, that the accelerated placement of children in adoptive placements does not lead to catastrophic inter-generational difficulties in the future. But all in all a sensible set of proposals.

  6. A very esoteric post. Is his lecture posted anywhere?

  7. So what can a private law applicant seeking contact expect now? I think I attended thirteen hearings between May 2009 and June 2011, half of them wasted dealing with the mother’s ridiculous allegations. It’s not going to be difficult to cut that rubbish out if there’s the will to do it, but is there? What kind of timescales will be applied to private applications? And what if the mother alleges sexual abuse or somesuch, as she did with me?
    Who is going to deal with that? Please don’t say social services or the police because it was that lot of fence sitters that had me running for the courts in the first place. When it comes to serious allegations will an expert still be called in to provide opinion because accurate illumination is what a court is going to need in those circumstances? I don’t see any of that mentioned.

    • All good questions (Although I think you’re muddling factual issues with opinion and expert evidence). I don’t really know the answer. The modernisation programme does not give much attention to private law proceedings, and the lecture I have summarised did not cover it either (partly due to time constraints – it was a dense 2 hour talk and dealt only with public law matters).

  8. Like most such documents: it is not written in English but in Bollocks, a dialect which uses (mostly) English words but produces garbage.

  9. Will we get Part Two then, for procedural reform of private law? It certainly needs it.
    Here’s one reason why.

    On experts, they provide opinion e.g as to whether abuse occurred, and don’t make findings. The courts decides the factual findings. I thought as a barrister you would know that. Anyway, having spent months on remand in purgatory so to speak, allegations commonly collapse when expert opinion on them is expressed. He told me that. In my case [edited for legal reasons] Throughout the process, the PWC is allowed to keep her foot on the brake pedal and either deny, resist or slow contact. Surely 90% of all that could be considered unhealthy control by a PWC and simply get cut out? How?

    First, by not allowing the mother or PWC to set the tempo e.g. delay joint instruction of expert. Second, cut out stupid, time-wasting statements; with police/social services reports already available, why does the mother get a second chance to utter further inanity? Third, in case of false allegations, PWC immediately loses that status if NRP possesses the time and capability to take on significant child care duties himself. Cafcass could of course do an assessment in parallel while the forensic assessment is underway. Four, shared residence order is automatically made as a half-way house in case the by now ex-PWC continues with her stupid, alienating behaviour. When false allegations founder, the only remaining debate should be over someone’s degree of unfitness.

    Game over in three or four months that way.

    • Hmm. It would be so easy if it were always as clearly binary as you suggest : false allegations / true allegations. Whilst the court has to make findings as to whether an allegation is made out or not a failure to prove is not always lead to a finding of false allegations, in the sense of maliciously false. Many allegations are made in good faith, although it transpires wrongly. It surely cannot be right that a child would suffer a change of residence where a perfectly good parent has made a reasonable allegation that was genuinely believed but which turned out to be mistaken. For sure many cases are less benign than that, but there is a lot more nuance and complexity than your comment allows for.

  10. Philip Measures

    But Paul’s stated timescale of 2 years was ridiculous and it is right to have a much tighter framework for resolution.

    The Law will often be a ‘blunt tool’ to resolve many issues – especially when assessing what is alleged on ‘the balance of probabilities’ – that by very definition means that a ‘judgement’ has been arrived at by the Court which may, or may not, be true.

    There has to be a concentration of the seriousness of allegations – almost a triage approach – and the most serious referred to Social Services because they must mean that serious abuse is being alleged.

    I also feel that children must be spoken with directly / worked with during the course of the assessments being undertaken bacause Contact is primarily THEIR RIGHT unless it is unsafe.

    • Thanks Philip,
      2 years does sound an overly long time, but of course it is difficult to understand what has happened without the details – you will see from his comment that Paul did provide a bit more information which I had to edit for legal reasons, but really to give meaningful comment you do need to know exactly what has gone on and why. In general terms though 2 years is far too long to identify allegations, make them trial ready and get findings one way or the other – even if there are experts involved – given the variables that arise from greater or lesser difficulty sorting out disclosure of evidence in individual cases its difficult to be prescriptive about how long these things should take though.

  11. So many things happened. A judge recused half way through. Three postponements on the court’s own motion. None of that helped.

    The important thing to recognise is that really serious allegations can occur prior to a court application. [edited for legal reasons]
    Is contact really a child’s right? That’s a step too far in my view. Were it so, the child would also have the right to refuse contact. Where would that get us? What if the child is alienated or showing early signs of it [edited for legal reasons] You won’t get that degree of analytical ability from a social worker already wedded to the idea of abuse.

    There is no way that a non-expert judge could tell the difference between an alienated child and a non-alienated one and neither can a Cafcass officer. And that is not to undermine those people. [edited for legal reasons]

    You’ve got to have legal procedures that lead to a better search for truth. That requires an expert. And the court must appoint that expert. Otherwise you will get injustice arising from instances where serious false claims occur. The agencies don’t help when they support the idea of abuse but cop out on the basis of insufficient evidence (to prosecute under criminal law). And if a court and the parties accepts the report’s opinion on abuse as definitive (both parties signed up to the report here, hence no findings) then the report’s recommendations should be implemented in full. This didn’t happen. A case dragged on.

    When allegations founder, a court must get on with the job of re-building contact fast and not allow a falsely-accusing parent to retain control of a case in the aftermath.

    Go and tell that to the Ryder committee if you would, please.

    • Sorry to have had to edit your comment, I’ve chopped it as little as possible.
      I don’t know what you mean by the Ryder committee. Ryder was the judge in charge of modernisation but has recently been appointed to the Court of Appeal. If you are thinking of the “Norgrove Committee” that was the Family Justice Review which has now concluded.
      The justice committee has taken evidence on family justice matters a number of times in the last couple of years, perhaps that is what you are thinking of?
      At any rate I have no special access to any of those persons or bodies so you will have to take your views directly to them.

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