The interim report of the FJR has been published today. This post represents very much an interim analysis of that interim report (is it hyperinterim, adopting the style all the most fashionable injunctions?). I'm pleased to say that quite a lot of what is in the report was contained in the paper presented to the FJR by myself and Stephen Cobb QC for the FJR, although no doubt many others echoed the same sentiments.
The headlines are:
The creation of a Family Justice Service (managed by a Family Justice Board) with overarching responsibility for the management and funding of the system as a holistic entity, and with a consolidated budget to cover CAFCASS, Courts, Legal aid, funding for mediation and support for contact. CAFCASS to be subsumed within the new FJS.
There will be a single family court in which both magistrates and judges will sit, allocation depending on complexity (how will this differ in practice from the current system apart from removing the need for formal transfer and more coordinated listing and therefore better use of court resources?). Except it won't be single because there will still be the High Court. Which I think makes two.
A move away from reassessment to make good deficiencies (perceived or real) in social work and care planning and a move away from the role of the Guardian and the court in scrutinising these things.
I pause to insert pa 72 of the report, which made me squirm as I read it:
Too much time is being spent trying to predict the child’s future welfare needs through the examination of the detail of the care plan. Yet circumstances change over time and so do children, in ways that often cannot be foreseen when care order decisions are being made. Courts should focus on the fundamental question whether a care order is in the child’s best interests. Other means are in place to assure the welfare needs of children who cannot live with their birth families once a care order is made.
Time is short, so I will sigh deeply and audibly *SIGH* and move on. To paragraph 78:
The court should not examine detail such as:
- whether residential or foster care is planned;
- plans for sibling placements;
- the therapeutic support for the child;
- health and educational provision for the child; and
- contingency planning.
...Local authorities will of course continue to be expected to develop and implement high quality care plans for children.
Expectation? Why would we expect (or accept) that to happen given the existing and likely future pressures on the system and if the courts are not breathing down the necks of Local Authorities? We might expect that to happen some of the time, in some of the best Local Authorities, but across the piece?
In fairness, the FJR has somewhat passed the buck back to Eileen Munro here, relying on her to come up with a plan to improve the "quality, particularly the analysis of the issues, presented to court. The consequence should be a reduced need to commission additional reports from others, and to give judges greater confidence in the decisions they make" (pa 88). I love it when a plan comes together, and it is only fair to await the report from the Munro review before being too intemperate about the apparent notion that one can separate the substance ("detail" is the pejorative descriptor for "substance") of a care plan from the best interests decision.
Revision to the tandem model - not scrapped as many thought, but "more proportionate" with less focus on quality assuring the work of LAs. Possibility of tandem solicitor / guardian employees under the same employer. The obvious difficulty with this would be where a competent child separates from the Guardian and their solicitor would not be independent. They would then need to build a relationship with a new solicitor, which is not helpful to any teenager.
The report says that "No legislation should be introduced that creates or risks creating the perception that there is an assumed parental right to substantially shared or equal time for both parents". But there is a recommendation that there should be "a statement in legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm."
The requirement for grandparents to seek leave of the court before making an application for contact should remain. This was misreported by The Telegraph this morning, who reported (and it still says this at 6.30pm this evening) that:
"Grandparents will get legal powers to guarantee them access to their grandchildren after divorce battles under new proposals."
and that there is a proposal to create
"legal rights for children to decide which parent they want to live with and when they should see other family members."
There simply isn't. It's just bad legal reporting from the Home Affairs Correspondent.
What is quite radical I think is a proposal, tentatively set out, that we should abolish the residence : contact dichotomy and simply create a single specific issue order, the issue being the time that is spent with each parent and how it is divided. There are some slightly confused proposals (I think) about what happens where a father doesn't have PR, which I think amount to the idea that he has to first apply for PR before then applying for a specific issue order, but that in the meantime he could apply for a residence or contact order. I confess on first brief reading I'm perplexed by this, and possibly don't understand it properly - it seems retrograde and arbitrary to me (but then the law on PR for dads as compared to mums is pretty arbitrary). Someone with more time to read through this in detail can post a comment below on this - what does it mean??? It's at pa 112-113.
No change to FHDRA in private children, cases to be allocated to simple or complex tracks (that was an FLBA idea).
"Where an order is breached, the case should go straight back to the court, to the same judge. It should be heard within a fixed number of days, with the dispute resolved at a single hearing. If an order is breached after 12 months, the parties should be expected to return to Dispute Resolution Services before returning to court to seek enforcement." I think that's all well and good on paper, but suspect that many cases will not fit neatly into that template and will not be capable of being resolved at a single hearing within a fixed number of days.
Pa 127 is interesting: "We firmly believe, in the interests of the child, that there should be no automatic link between contact and maintenance. However, when contact is continually frustrated and it is in the child’s best interests, we think there is a case for providing an additional enforcement mechanism for the courts to alter or suspend the payment of maintenance via the Child Maintenance Enforcement Commission." Crumbs. I don't see how the first sentence is consistent with the second. I think that it raises all sorts of issues, for example how can the court make meaningful orders about maintenance when it knows nothing about what maintenance is being paid or the financial circumstances of the parties. Inevitably this will muddy the clear water between contact and maintenance whatever the intention.
Divorce to be dealt with administratively.
Fees in private family disputes should reflect the full cost of services. This is caveated (pa 132), we will see how far it survives as a proposal.
Oh, and better case management, interdisciplinary working, judicial continuity, promotion of mediation...blah blah. All good, sensible, unsurprising.
There you go. That's my first run at it - and it was a run. I haven't read the full report, so would appreciate any corrections via comments. But those appear to be the headlines. Some sensible, some I'm thinking about, some I think are a bit barking or naive. It could have been a lot worse, and it does contain a lot of food for thought.