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]
Been on a run of public speaking things. Tomorrow (Mon 3rd) I’m off to that there London to talk with Sarah Phillimore and Andrew Pack about lessons we might be able to learn from the Ellie Butler case for London Resolution. Not an easy topic – we could be there all night. The idea arose from a joint blog post that we wrote together with Louise Tickle (journalist) in the wake of the verdicts back in June.
Anyway, astonishingly given our massive celebrity, there appear still to be tickets left – so if you would like to come please do : eventbrite booking details here. It’s 6pm somewhere near St Pauls (she said confidently).
There will be some form of write up and handouts etc on The Transparency Project blog in due course.
This review is a guest post written by Sarah Phillimore, barrister at St John’s Chambers (@svphillimore), Bristol.
‘Court of Protection Made Clear – A User’s Guide’
Consulting Editor: The Honourable Mr Justice Keehan
Authors: Clare Wills-Goldingham QC, Marie Leslie and Dr Paul Divall (Bath Publishing, 2016)
This book sets out to be a helpful first port of call for the lawyer and to shine a light on the practice and procedure of the CoP for all who use it; this will encompass a wide variety of people – as family or friends or as professionals in other fields such as care home managers. It is written by two barristers and a consultant psychiatrist.
It is a timely book – the CoP is making great efforts to cast off it’s ‘shroud of secrecy’. The transparency ‘pilot’ opening up the CoP is most likely here to stay. Together with the recent practice of transferring cases to be heard at ‘regional hubs’ it is inevitable that increasing numbers of people are going to be made aware of the kind of issues that CoP practitioners must grapple with. Any attempt to demystify this process is to be welcomed. Given that CoP cases involve only those who lack capacity to make decisions, a heavy responsibility thus falls on others to determine what is in the best interests of some often extremely vulnerable people; it is important that their decision making capacity is not hindered by the avoidable stress and strain of trying to deal with an unfamiliar legal process.
Those coming to the CoP for the first time – and even I suspect those who are more familiar – are faced with a complicated network of rules, regulations and developing case law at the highest level. It’s a lot to take in. The stated aim of the book is to lead us through it and offer a practical guide.
The authors make good their promise to use plain English (I particularly like their description of mediation – ‘often considered to be people sitting round a table getting nowhere fast’) This breezy and colloquial style is a refreshing change from many of the legal texts I have to grapple with.
One of the major advantages to this book is that it is linked to a website – courtofprotectionhub.uk which provides links to the relevant forms and will continue to update the changing case law. This is an essential adjunct to an area of law such as this where the case law will require continual and careful evaluation.
It is very thorough – there are 21 Chapters in total, first offering an overview of the main legislation, and issues of capacity. Chapters 6-8 describe the applications that can be made and preparation for the hearing. Chapter 9 sets out a very practical description of what happens at a hearing and what you should do if attending as a lay person. This is exactly the kind of calm and sensible advice which will be very valuable for a nervous friend or family member who has very little idea what to expect. The remaining chapters deal with particular aspects of the CoP such as explaining the difference between ‘property and affairs’ and ‘health and welfare’. ‘Deprivation of liberty’ looms large at Chapter 15, which will be no surprise to anyone with even passing acquaintance with that issue.
This book does what it says on the tin. It is a good, clear and helpful guide for the relatively inexperienced lawyer or the worried family member. I particularly like the Glossary which has clarified a few hitherto mystery phrases and acronyms.