I’m confuserated.
First of all the ALC website reported Ryder’s apparent acknowledgment at the NAGALRO conference that the 26 week limit was only currently achievable in about 30% of cases. And then it disappeared. Except of course you can’t disappear something you’ve published on the internet “juslikethat”, Tommy Cooper stylee. Family Law Week had already reported it. And so there was an odd void on the ALC website for a period. A post with no content…Begging the question.
Now it has been replaced with a post that says (I paraphrase) “this is what we reported was said, this is what the Judicial Office say was in fact said, and just for good measure here is Ryder J’s rider “for the avoidance of doubt”.
This is what was originally reported:
“Practitioners from different parts of the country raised concerns about courts rigidly implementing the 26 week timetable. One child care lawyer asked Mr Justice Ryder if he was aware that in the experience of many lawyers, the 26 weeks requirement had been written “on tablets of stone” – even if it led to a denial of justice for children and parents. Ryder J responded that the 26 weeks was not written in stone, that it was aspirational, and that in his view it may be achieved in two years’ time.
Both he and McFarlane LJ were very clear that there was “no missive from on high”, and no direction given to impose 26 weeks. The family modernisation programme did not have the status of a practice direction. Ryder J went on to observe that early data being collected from courts showed that the 26 week timetable was only achievable in about 30% of cases.”
This is what the ALC now supplement that with:
“Following exchanges with the judicial office for the family modernisation team, we understand that the following revised note has now been agreed by McFarlane LJ and Ryder J as a more accurate account of their remarks:
“The NAGALRO conference on Monday 15 October was addressed by Mr Justice Ryder and Lord Justice McFarlane. Practitioners from different parts of the country raised concerns about courts rigidly implementing a 26 week timetable. Lord Justice McFarlane, recollecting the recommendations of the Family Justice Review panel of which he was a member, said that 26 weeks was aspirational and that the review anticipated it may take a period of time to implement. Mr Justice Ryder confirmed that there had not yet been primary or secondary legislative change nor was there guidance which had the effect of a ‘missive from on high’.””
And this is Ryder’s rider:
““Proposals for legislative change have already been published by Government and the period that we have before their projected implementation allows us (i.e. judges and practitioners alike) to prepare for those changes in the way that was anticipated by the Family Justice Review. Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case. That is why the Case Management System records the timetable for the child which is set by the court. Data will continue to be collected so that we obtain a better understanding of the duration of cases and the reasons for delay.””
Marilyn Stowe reported it here, saying that
“The 26 week timetable was a key proposal in Mr Justice Ryder’s Judicial Proposals for the Modernisation of Family Justice, published in July. This set out:
“…a timetable track which will presume that nonexceptional cases can be completed in 26 weeks. These will be known as pathways and they will describe in permissory language how to achieve the objective i.e. making the best decision for the child within the welfare timetable set for the child.”
This report, however, does have the status of a practice direction , said Mr Justice Ryder, and in any case, early data suggested that the 26 weeks was only achievable in about 30 per cent of cases.”
Marilyn records the Modernisation Programme being described as having the status of a Practice Direction, where an earlier report from Family Law Week stated the opposite (i.e. it DIDN’T have such status) – which I think must be right (perhaps Marilyn has taken her information from FLW and a typo has crept in?). The FLW site has now been edited to remove the original text, and now has the “approved” version as per the ALC website : but unlike the ALC does not record the fact that the item has been amended. Naughty FLW for editing without acknowledgment.
So what’s going on?
The statement agreed by the Judicial Office notably omits the 30% achievability remark. It’s not clarified or corrected. It’s not there at all. There is no assertion that the report was inaccurate.
Meanwhile at Parliament this week the ALC, FLBA and others have been giving evidence to the Justice Select Committee – and they have been very very frank about 26 weeks : “it won’t work”. They are voicing what the judiciary cannot.
I wondered why there was an error on Marilyn Stowe’s blog but now I can see that you have probably guessed right and it is a typo. At the Nagalro conference on 15 October, there was a question from the floor from a solicitor whose experience was that the courts already operate a 26 week limit. Both Ryder J and McFarlane LJ specifically said that there was no PD or SI to that effect and that a 26-weeks limit awaited Parliamentary approval. My note is that Ryder J said that he understood that 30% of cases are currently being completed within 26 weeks and that the court must fix a timetable according with the child’s welfare. This may be 26 weeks or may not.
The “may or may not” is fine, but there is growing suspicion that there has been imported without legal basis, a starting position that completing the case in 26 weeks is “good” for the Court and going over 26 weeks is “bad”.
The position in law remains the PLO – a general principle that cases in general ought to be completed within 40 weeks, but subject to the overriding objective to determine cases fairly.
Why does it matter? Well, if we move to 26 weeks after legislation, then so be it, but if we import it simply by the Courts being told by a nod and a wink that they are being measured and that 26 weeks is good, and beyond that is bad, then case management decisions (such as whether an expert can be appointed in a particular case) will be taken on the basis that the case should finish 14 weeks quicker than the current legal target, and might well be refused.
Given this confusion, what I would have wanted from the senior judiciary is something that says, in terms – delay is prejudicial to children and one should strive to conclude cases without delay, but there is no requirement, obligation or onus on Courts to determine cases within 26 weeks.
The whole 26 week thing is all about emphasis. If you say “It should not take a year for decisions to be made about children, and we should do it within 26 weeks” it sounds fine. Now say “Parents who have such significant problems that the State intervenes and takes there children have only six months to turn their lives around and put things right before their children are adopted” and it doesn’t sound quite so beautiful.
[Add in that about 3 of those 6 months will probably be on getting assessments to find out exactly what the parents problems are and what they must do to put things right and it starts sounding downright ugly]
Dog ugly Andrew. Dog ugly.
@Andrew, doesnt the position in relation to parents rather ignore the fact that in many, if not most, cases which actually end up in care proceedings those parents have already had significant input to help them make the necessary changes.
Outside of emergency cases it was generally the case in my area that kids who ended up subject to proceedings had normally been through the Core Assessment and Conference stage and had input from multiple different services to help their parents improve their parenting.
Then when you get into court it is as if the slate is wiped clean, none of that happened and we are back to assessing them yet again from scratch.
Hello Andrew
That’s certainly how it was when I started, and expert assessments were really quite rare and called upon to answer genuine areas of real doubt (rather than a second opinion). Somewhere along the line we ended up in a system where social workers became ‘commissioners of expert reports’ rather than authors of them, and I think this probably happened at about the same time that the Court stopped having Guardians who went to visit parents, see children, read files and have an independent check and balance view.
I think the FJR probably intends to roll back to how it was in 1993, but I’m not sure you can get there from here, and certainly not in one stride. [I agree that in a lot of cases we seem to be in a mindset that everything that went before is Reset, and we have to start all over again, and that seems contrary to common sense]
Courts and lawyers have had nearly twenty years of disregarding social work reports and the social workers have become more and more disillusioned (why put forty hours you don’t have available into doing an assessment that the Court sniff at?) and that trust and quality needs to be built back up.
But I am hi-jacking Lucy’s blog on a whole separate topic there. The community care survey of social workers throws up some interesting stuff about how little they think the process respects their work and analysis.
Hijack away Andrew. I don’t mind! Not sure how you have time mind you, new posts from you have been popping into my inbox all day…
[…] I’ve heard the Ryder roadshow before and there are nuanced shifts each time I hear it. Today there were a couple of significant remarks which I hope I have accurately recorded / summarised as best one can in 140 character bites. I think its worth highlighting those, particularly in view of the minor controversy over the minor controversy arising from the (mis)quoting of Mr Justice Ryder at the NAGALRO Conference, which I blogged about here. […]