UK Family Law Reform

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Mr Justice Ryder proposes to overhaul our family courts

Today Mr Justice Ryder published his proposals for the modernisation of family justice. His aims: to improve the “workings” of family courts, and change the culture of family courts for children, families, judges, lawyers, social workers, Cafcass and social workers.

Mr Justice Ryder was appointed to this task in November 2011, following the publication of David Norgrove’s disappointing Family Justice Review. You can read the judge’s report here, and his main proposals are as follows:

The single family court. This new court will have a new structure. All levels of judge and magistrate will be members of the same court. They will sit as “Judges of the Family Court”. Judges and magistrates will sit in the same buildings, where possible.

A framework for leadership and management. Existing judicial resources will be managed more effectively, to reduce delays in the court system. Better listing practices will improve the preparation and hearing of cases. Over time, it is intended that public law circuit judges will not be away from their court centre for more than four weeks, to ensure continuity for the cases allocated to them.

A framework for good practice. From the proposals summary: “Experts are misused and over-used. The court must be adept at scrutinising whether the evidence is already before the court and whether further expert assessment is needed on the same issues.”

Public law case management. All but exceptional cases are to adhere to a 26-week timetable. There will be rule and practice direction changes relating to the use of experts. It will be made clear that other than sufficient adversarial fact-finding, the judge’s function in determining the welfare of the child is investigative. “Expectation documents” will set out, in plain language, what the court expects from family justice agencies. “A consistent but firm approach will be developed to litigants whether represented or not to ensure that issues remain in focus and are addressed within the timetable set by the court.”

Private law. Litigants in person will receive guidance and advice materials in a variety of formats. For example a private law “pathway” will be published to describe what a court can and cannot do and how it does it.

Financial remedy cases. These are often heard elsewhere, but are to become a “major strand” of the new Family Court. However specialist services in London and elsewhere are to be preserved.
The High Court. “The Family Court will not absorb the High Court, but in future High Court Judges will regularly sit in the Family Court providing leadership to interpret and apply legislation, rules, practice directions and case law in decisions that provide binding precedent.”

The voice of the child. It is important to engage with children to help them to understand the process at every step, to ascertain their wishes and to give them the opportunity to make themselves heard. It is intended that over time, the majority of judgments can be handed down in an anonymous form, to protect the privacy of children and adults alike.

What Mr Justice Ryder wants to achieve is highly laudable. He intends to streamline the system, cut costs and speed up access to justice. For those of us who experience family law proceedings on a day-to-day basis the big question is, will his proposals have the desired effect?

What immediately struck me, when I read the 25 pages of proposals from beginning to end, was how challenging his task must have been. Reform is required but, at a time when budgets have been slashed and legal aid for divorce cases is set to disappear completely, how is it possible to overhaul the family courts while ensuring that fairness and equality – the bedrock of our family law system – are not lost in the mix?

My concern is that these ambitious measures will do little to unclog our court system, which is creaking at the seams and has reached breaking point.

For example, as a result of straitened budgets and cuts to legal aid, the number of people going into court without legal representation has boomed. The rise of the litigant in person means that assumptions about cases being quick and easy to handle are often misplaced. Lawyers are, without a doubt, the backbone of the family court . Already the result of their removal , with diminished access to legal aid, has been mayhem. It is wrong, naive or even downright cynical to suggest that modernising the system will make swingeing changes to an already overloaded and overworked court. Or indeed that new approaches, by an increased number of designated family judges, is going to have much difference either. This is because a curt judge who cuts short a litigant, or is perceived not to have given a fair hearing, is going to be appealed or the subject of a complaint. It happens now, so why won’t the numbers just increase?

As is obvious from the numerous reported cases, those who represent themselves in court are far from easy to handle. Nor are their cases easy to resolve. Sometimes the cases involve complex areas of the law. When placed under pressure are judges, particularly deputy judges, sufficiently specialist to be able to handle these cases free from error?

Furthermore, self-representing litigants don’t usually have finely honed skills of negotiation. More often they have no clue as to what the law is, or the requisite procedure. They don’t know how to handle themselves dispassionately in court, what points to make, what points to concede, how to present skeleton arguments to an already overworked judge… I could go on. And as for dealing with lawyers on the other side, that is a nightmare still to manifest itself. The Law Society has issued guidance about how lawyers should deal with litigants, but what about vice versa? And there will be trouble aplenty in store for everyone, when legal aid finally goes.

It is an outrage. Lawyers are still there for the rich, easing them through, but what about everybody else? Imagine if doctors were only treating the rich! There should be a continuing outcry to try and avoid certain disaster from April 2013, when legal aid finally goes. The litigants in court don’t need more “pathways” and materials “in a variety of formats”. They need access to lawyers!

Mr Justice Ryder has my sympathy, because he has produced his best possible report in extremely difficult circumstances. However I still believe that every effort should be made not simply to appease and cooperate, but to fight, fight and keep fighting to preserve the lawyers who proudly serve and hold together the family court for the benefit of every litigant, not just the rich.

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