Listen, sarcasm is the only mode of survival these days. And a good sarky blog title is food for the soul…
Today brought us an email from the President with nine separate attachments, each a piece of guidance, procedure, a template or a table. They deal with allocation, docketing and the like. In the brief moments I have had to consider these documents I have made three observations :
“Docketing” a case is apparently distinct from “reserving” a case. Docketing is designed to ensure that the same judge deals with all interim hearings and possibly final hearings unless released. Reserved cases all hearings are listed before the reserved judge, unless the case is released to another judge. If you ask me, “docketing” sounds a lot like the version of “reserving” that operates in reality, and both can be boiled down to an aspiration of judicial continuity that may have to give way to other considerations on some occasions. But I am prepared to concede I may be missing some of the subtleties of the distinction (some might say I am missing subtlety in many senses of the phrase).
I have learnt the verb “patterning”. I’m sure someone knows what it means. Answers on a postcard.
“Continuity of representation is also important, and lawyers will be expected to organise their diaries to ensure that cases are heard without delay”. I’m unsure what this means. Does it mean what we (counsel) already do: a bit of jiggling here, taking 2 + hearings a day when that doesn’t work, or returning to a colleague if all else fails? If it means more than that someone will need to get the Code of Conduct amended. A booking is a booking unless we are released by the client – not the court. *sigh* Perhaps I worry too much.
The allocation stuff is interesting and warrants some careful analysis (which I have not really attempted – these are initial reactions – it’s a blog not a skeleton alright?).
So, for what it’s worth, selected highlights of the President’s Guidance on Allocation and Gatekeeping for Care, Supervision and Pt 4 proceedings:
- The Allocation and Transfer of Proceedings Order 2008 and the PDs on Allocation (2008 and 2009) still apply BUT
- Proceedings described in the schedule to this Guidance are not to be allocated to magistrates or the legal adviser acting as their case manager unless specifically approved by the Justices’ Clerk (or his nominated deputy) in consultation with the DFJ. (We’ll come to what’s in the schedule in a minute).
- An expectation that mags will not hear contested hearings where estimated length of hearing is more than 3 days (unless approved from time to time by the Justices’ Clerk (or his nominated deputy) in consultation with the DFJ.
- Proceedings described in Part 2 of the schedule are to be allocated to a Circuit Judge, Recorder or High Court Judge, NOT a DJ (unless specifically released).
And that schedule? Well it looks to me like a mighty expansive list of things that Magistrates must not touch with a bargepole. That is to say, it is NOT what I was anticipating, which was rather more of the “Magistrates are competent and capable and we should be cascading downwards at every opportunity” line of thinking.
By way of example, the schedule includes cases where there is a risk or allegation of serious physical or sexual abuse, of serious dv, where there is a disputed issue relating to psychiatric illness of a parent or child, significant disputed medical issues relating to the child, any unusual or complex issue relating to ethnicity or religion, where the OS or litigation friend is required. I would hazard a guess that this will knock out a good old chunk of care cases, leaving them to be dealt with by DJs in the FPC or County Court, or, if they also involve the elevated complexity in Part 2 of the schedule. In particular there is an apparent tension between the Allocation Order (which was amended specifically to permit the retention of OS cases in the FPC) and the suggestion that OS cases should not generally be dealt with by Magistrates.
Like I said, this will require some further pondering, a bit more attention to the detailed wording than I have yet given it, and a bit of suck it and see. If only we had as many resources as we do guidance, protocols and procedures. The proof of the protocols will be in the implementation….