FLBA Chair calls for more resources for family justice system

Philip Marshall QC, chair of the Family Law Bar Association has made some forceful remarks in his latest email to FLBA members, which I think merit emphasis. He is talking about the President of the Family Division’s 15th “View” in which he says ‘we face a clear and imminent crisis…for which we are ill-prepared and where there is no clear strategy to manage the crisis’.

I commented on the view here. Philip Marshall QC says this of the President’s. It needed saying.

…Such observations are unprecedented in my experience.

We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.

Perhaps understandably, the President is constrained to acknowledge that at least in the short-term there is unlikely to be any increase in judicial resources. Everyone who uses the family courts on a daily basis – whether as judge, advocate or lay client – knows that the system is already massively stretched (I hesitate to say to near breaking point). I hope that doesn’t sound too defeatist? It is not intended to be. Rather it is an acknowledgement of the reality of the enormous challenge that we all face day in, day out simply to get cases heard. Delay is now endemic at all levels (as the recent Court of Appeal consultation made plain). This, perhaps, is particularly acute in family cases, in which there is an over-abundance of litigants in person, particularly at appeal court level.

And so our overlords and paymasters at the Ministry of Justice and at the Treasury need to take notice. I repeat: the family courts face a clear and imminent crisis which has to be addressed. So let me be bold, and I hope not too obviously naïve:

As Chairman of the Family Law Bar Association, I call on government to take notice, act now and inject urgently needed additional funds into the family justice system. 

I don’t, of course, ignore the £700 million – or is it now £1 billion? – to be invested across the wider court estate to modernise and digitise procedures (including setting up the much heralded On-line Court). This is much welcomed, long overdue, and makes up for years of under-investment. And it probably (i.e. definitely) won’t be repeated any time soon. But what is actually needed is extra funding year-on-year, to ensure we have more specialised family judges, both nationally and locally, so cases can be processed properly, in something approaching a timely fashion.

And perhaps some public acknowledgement or even a response – i.e. any response – to the President’s statement would be a good start? I’m not aware that any has yet been forthcoming. [my emphasis]

Really serious and imminent

Newsflash : We’re all flat out and it ain’t getting any better. I hadn’t noticed.

The President however, has time for the production of two views in the space of a month. And in this one are some shocking figures. He is right, it’s a flipping crisis. And yes, it will be uncomfortable. If by “uncomfortable” you mean “a disaster”.

Number 15 contains a familiar motif : I shall call it the “make it so” syndrome. Remember “it must be done it can be done it will be done”? It lives on in this iteration of the View saga : “we’ve got too much work, not enough people, not enough money, the figures don’t add up – but it’ll be fine…somehow..” Yes, chaps. We must make like Nike and “Just do it”. Anyone got a plan?

At least there is no suggestion that the flippin’ online court is a solution.

The President poses some very good questions that require research. Of course nobody is collecting the data that would be required to actually do this research and the judiciary have no research funding with which to make it so. And questions without answers butter me no parsnips. Or something.

Having reiterated his commitment to the tandem model (yah boo Daily Mail) he proposes first aid in the form of (wait for it) more bundle discipline. Give me strength. I know we’ve only got half a sheet of sticky back plastic and an empty bottle of mild green Fairy liquid to work with – but there comes a point where you have to call it like it is. If we’re being up front enough to call this a crisis lets be frank and face up to the fact that we can’t make this stack up by slashing bundles. And the uncomfortable truth is that we can’t even make this stack up by sprinkling magic FDAC / Pause fairydust on the numbers so they become less “uncomfortable”. FDAC is a fantastic thing, but it is very heavy on judicial time from what I understand, it requires a certain type of judge and it suits a certain type of case. And more to the point it requires a willing and able local authority to bank roll it. That would be the same local authorities who are wildly issuing proceedings in respect of all the falling apart families they can no longer afford early intervention and support services for. So, wiv respeck : it ain’t happening Pres. From where I’m standing the increase in care cases is not all drug and alcohol cases, nor is it all repeat mums – and PAUSE and FDAC won’t touch the sides. The cases I am seeing are sexual abuse and physical harm and long term neglect, domestic violence and mental health and honour based violence and emotional harm from conflict…. For what it’s worth (and frankly we don’t have the bloody research the President opines that we need so my view is as good as anyone’s) the causes of this rise are indeed multifactorial. These things stick out for me :

  • some of it is because we aren’t supporting families to prevent issue – that’s to do with resources
  • some of it is because we are getting better at recoginising different types of harm, in my view particularly emotional harm
  • and some of it is the risk monster : Our child protection system is simultaneously hypersensitive to risk and yet spectacularly poor at protecting. See Bilson and Devine here (see, there is SOME Research!).

Some of it is because of temporary blips like cases on s20 – but I don’t think that’s a key issue.

I’m bemused at how this judicial comment thing works. This President it seems is not constrained terribly much by the convention against political comment. He’s certainly happy to dip his toe in. And yet…the scale and depth of this crisis is spelt out in stark numbers and plain english. But it’s like a skeleton argument which forgets to set out the orders sought at the end : more tools and resources please. If it is appropriate for the President to advocate the carrying out of significant research with a view (presumably) to reducing its workload in the long term, then surely it is not inappropriate for him to also advocate and demand more resources in order to properly discharge the core judicial function of deciding cases fairly? But on this point the President capitulates – it is always “we must assume there will be no more resources”. Why does the “make it so” syndrome extend to everything but this? Why is this the one thing that cannot be said? How can we make it so with no more judges or sitting days (and with High Court judges now doing half the Court of Appeal’s work too), no more resources, increasingly complex novel types of case, closure of court buildings, facilities and procedures for vulnerable witnesses in a mess, social workers and local authority legal departments in meltdown, and reductions in legal aid and a legal profession that is at capacity already? I know family lawyers don’t do pleadings, but it is like a pleading without a prayer.

This make do and mend approach to our justice system is becoming ridiculous. It is amateurish and embarrassing. This is not a hole in our trousers that needs patching. We’ve got nowt but a pair of kecks to cover our nakedness. The President is darned right it is uncomfortable (ha! darn – serendipitous pun there). And you can bet your last pair of clean underpants that it will ALWAYS be the fault of the lawyers and the judges (and the social workers) when the crisis becomes a catastrophe. Just as this last week in Parliament the family courts and judges were blamed for so-say failing women victims of domestic abuse, where when in reality much of what is complained of is completely outwith the control of the judges, and instead results from the decisions of government / Parliament (of which more another time – that was to be tonight’s blog post but the View disrupted my schedule).

A postcard from the President…

So I go away on holiday for a week and, whilst my focus is on knitting and farting around in the back garden, and the rest of the world is breathlessly tweeting about olympic medals, CAFCASS and The President slip out three distinct reform bombshells, all with a common purpose : managing the ever rising number of care applications in the context of the ever diminishing pot of funds. Like we wouldn’t notice…huh!

See The President’s 14th View here and CAFCASS in CYPNow here, and also here, in which local cash limited budgets for CAFCASS areas are mooted (see page 11 in which a pricing schedule for section 7 reports is mooted). I moaned recently on twitter about this idea, remembering the annual “we’ve run out of funds” hilarity for the poor sods who desperately wanted the access supervised contact via CAFCASS, who were told they had to wait a further 3 months until the next payday. I was then contacted by CAFCASS Comms and asked what my tweets had meant (I know – yikes, eh?). I told ’em that this was an annual event in my neck of the woods until at least a couple of years ago, and was told that hopefully this was now a thing of the past. It does indeed appear to be a thing of the past at present : it may, however, also be a thing of the future, based on the sketchy description of these limited cash budgets that we have been given. You know guys, if you make us guess what the plan is, we might imagine it wrong…don’t complain if we get in a flap.

The gap since the President’s last “View” is, by my reckoning, about a year. In the interregnum we’ve seen much happen, latterly Settlement Conferences appeared (as if by magic). The fourteenth view attempts a “Calm Down, Dear” to the hyperventilating ALC. “Settlement Conferences, it’s only a pilot dear!” says The Pres. Bound to be a Winner. We shall see. The President may protest that the ethos of these conferences is not to pressurise parents into capitulating, but that may not be how it feels from their end of the barrel. And it’s all well and good to say it’s a pilot, but what I’d like to know is who’s flying the plane? The President says this is something which is judicially led. There is no reason to think that is not so, although I suspect that not all judges are likely to enthusiastically embrace this pilot. But, to torture the aeronautical metaphor a little further – the judicial pilot still needs clearance to land from Air Traffic Control. This is a MoJ pilot, with MoJ funds. It is clearly designed to try and save funds through a reduction in expensive final hearings. This is no bad thing in itself. But whilst we all love an Easyjet price tag, it is still *quite* important that the landing gear doesn’t fall off and the plane lands safely at its destination. Who gets the final say as to whether this judicially led pilot is rolled out? And who decides the criteria? (On a parallel note, I am told that the MoJ (with no fanfare) have recently pulled the plug on the drug testing pilots that appeared to unstick so many cases. I haven’t seen any announcement setting out why, or any published analysis of the effectiveness and cost / efficiencies of the scheme and we’ve had no guidance issued on “the plan” going forwards or even formal notification the problem is going to re-emerge. I’m not sure yet what we are supposed to do with those cases involving LiPs who can’t pay for hair strand testing, but whose cases (and relationship with their children) are going to be once again held up or stymied with out it.) – but I’m pretty sure that wasn’t “judicially led”.)

What’s more Judges – particularly those with managerial responsibility – remain very obviously under statistical and budgetary pressure – average case duration, allocated annual budgets of sitting days etc. which the purists amongst us might suggest have the potential to impair judicial independence. Is it not understandable to worry just a little that these pressures bearing down upon the judges will transfer inadvertently or overtly to parents and their legal representatives who awkwardly insist on a trial? Yes I know, I should calm down dear.

Anyway, it’s only a pilot. Whilst nobody was consulted much before it started, the relevant professional bodies and interested parties are now in a position to keep an eye on this and feed back on how it has gone in due course – it may be successful, as reportedly it has been in Canada. So, watch this space.

The second stealth missile delivered by The President in his Fourteenth Postcard from Summer Hollibobs was the “the tandem model is sacrosanct, except when it’s not” bombshell. It’s all a bit confusing :

The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased. I would therefore be strongly opposed to any watering down of this vital component of care proceedings.

And then (with an interlude in which The President opines that we are brassic) :

The MoJ, with my support, is investigating whether there is scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice. 

Say what? What is this “reformed level of representation” of which you speak?

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

Oh. So you mean that the tandem model can be suspended at hearings that aren’t really that important. That would be those pointless hearings that we no longer hold because the PLO has streamlined the system so that only hearings that are really essential are held (in order to save funds), and each hearing should be a focused and purposeful demonstration of active judicial case management with collective participation and responsibility?

Maybe he means CMH’s? Where critical case management decisions are made and where a ball dropped at this early stage can lead to an evidence gap or ineffective final hearing and delay further down the line? Nope. Can’t be those. And anyway, where a Guardian cannot attend or it is accepted by all his attendance is not essential the court can and does (on occasion) excuse the Guardian’s attendance – because the lawyer will be there keeping an eye.

Maybe he means FCMH’s? Where a single CMH wasn’t enough and the court has decided that actually, this case is complex enough, or has got messy enough due to previous problems, delay or non-compliance to warrant a further hearing. As above, Guardian can be excused where justified…No, he can’t mean the child would not need to be represented at those, surely…

Maybe he means FoF hearings? You know, the split hearings we never hold any more (ssshhhh, don’t tell him – we really all do still hold them)? He probably doesn’t mean those because the Guardian rarely attends those hearings throughout in any event, and the solicitor for the child is usually the lead solicitor for any experts – so they kind of need to be present to chief the critical witnesses – and report back to the Guardian who is off doing four simultaneous final hearings and an EPO whilst juggling a plate on her nose.

IRHs? Surely not? The child has to be represented if the other parties are to agree a final disposal about that child’s life. Otherwise, what’s the point of the child being a party (as undoubtedly they have to be for the purposes of article 6). He can’t mean that.

Maybe he means Final hearings? At which the complexion of a case can completely change in a moment, during which the Guardian will need to give instructions in order that their representative can cross examine witnesses – and ultimately give evidence herself. Nope. Can’t mean those.

And let’s not forget that the LAA already require the solicitor for the child to conduct all hearings where humanly possible, meaning counsel is less often instructed on behalf of children than for the other parties. Or that the LAA is even more difficult to persuade that leading counsel is necessary in the case of a child party than a parent.

So, I confess I’ve not a scooby what this means or what exactly is being discussed privately at the MoJ. But I can’t at present think of any scenario in which the absence of a child’s legal team from hearings in care proceedings could be anything other than the “watering down” of the tandem model that the President is so averse to. Of course, it does not help that these things pop up out of the blue, blueprints half drawn before we even know they are afoot. It does not inspire confidence. Even now there is no information that I can locate on justice.gov.uk or gov.uk about the “data-collecting exercise in 12 courts” or the second phase (in which it is proposed that, with the involvement of the judiciary, there will be exploration of “how a reformed model of representation could work in practice”). Note that here there is no assertion that this is judicially led. One interpretation of this view is that the President is publicly laying down a marker to the MoJ that whilst they are exploring this particular issue, there is a line he will not let them cross : note the President’s “From my perspective” here :

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.   [my emphasis]

and his “so far as I am concerned” here :

so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model. [my emphasis]

Goodness only knows what the MoJ have in mind – and again, its not reassuring only to hear of it via The President and once its already half baked. But the more I read the “View”, the more I think this may be a “By all means, take a look and see if you can find some savings – we recognise we have to help cut costs where we can – but don’t think you can mess with the tandem model!” coded message. I hope so anyway…

A personal sidenote : I’d like to see a stepping up by the minority of childrens’ representatives who still see a guardian brief as an easy brief and a passive or responsive role. It isn’t. It’s the hardest sort, and one bears a great responsibility as either solicitor or counsel for the child. When the wheels come off cases, it is sometimes legitimate to ask why, of all parties, the child’s team did not see it coming and raise it at the CMH or the advocates meeting? The role of solicitor for the child, when performed as it should be, is crucial and can have a significant postiive impact on case progression and efficiency. Its loss at any hearing, whether because an advocate is actually or effectively absent, is to introduce significant risk both of injustice AND wasted expenditure – as I think, at moments, the President’s 14th view acknowledges.

Anyway, hollibobs over tomorrow…Booo hoo.