The current state of family justice
In December we were treated to the latest edition of the View from The President’s Chambers, the regular(ish) update on the state of family justice from the President of the Family Division, currently Sir Andrew McFarlane (I put it that way as the View was originated by Sir Andrew’s illustrious predecessor, Sir James Munby).
So what did the President have to say?
Well overcapacity
Sir Andrew begins by considering what he calls “The unremitting pressure of work in the Family Court”. He explains that he has continued to visit Family Courts in all parts of England and Wales, and says that: “On each visit, I have experienced palpable proof of a system which is still being forced to work at well over its capacity.”
I have spoken here about this many times: more cases, fewer resources to deal with them and more litigants in person is a deadly cocktail (to use the President’s own word) for disaster.
And one victim of that disaster is the wellbeing of all of those who work in the Family Courts, including lawyers, social workers, Cafcass officers, court staff, magistrates and judges.
Now, I don’t honestly expect the average member of the public to be overly concerned for the welfare of these people. After all, they are generally held in pretty low regard, for example when compared to those working in the NHS. But remember: there is a good very chance that you or someone you hold dear will have need of the Family Court at some time in your/their life. When you find that the Court is under-staffed due to ill-health or inability to recruit suitable people willing to do the job, then you will be very concerned.
The President’s plan to deal with the issue includes “to develop a simple statement of understanding as to what is, and more importantly what is not, to be expected in terms of working hours and working practices”, and then to issue national guidance. Of course, that does not resolve the problem, as it does not address the issue of workload. As far as I can see, any such guidance would therefore inevitably mean that cases take even longer to deal with.
So how is the problem of workload to be met? Well, from two directions.
Firstly, Sir Andrew explains that next year the number of Circuit Judges and District Judges ‘sitting days’ allocated to Family work will increase. In part, this increase will be delivered “by expanding the cohort of available judges with the addition of a number of circuit judges who have agreed to reduce their commitment to sit in crime in order to sit for at least 25% of their time in the Family Court”. I’m not sure what the hard-pressed criminal justice system will think of that…
The second direction is to take steps to reduce the number of cases requiring resolution by the courts, although that, as Sir Andrew explains, “is a significant issue for society at large, rather than being simply one for the court to deal with by increasing and rearranging its resources.”
Other matters
Moving on, the rest of the View is an update on the state of various other matters affecting the family justice system. I won’t go over all of them here, but the following are perhaps the points most likely to be of interest to readers of this blog.
It is not unusual for a party to family proceedings to want to obtain disclosure of material held by the police. The problem is that the police frequently levy a charge for the disclosure and, as Sir Andrew points out, this can cause additional difficulties where, for example, both parties are litigants in person who lack the funds to pay. Of course, legal aid is not usually available for private law matters, so there is no possibility of the charge being met by the Legal Aid Agency. Sir Andrew says that he hopes that the issue may be resolved “through informed discussion and cooperation” with the police.
Sir Andrew mentions a recent Family Justice Council debate on the question: ‘Do separating parents need the Family Court?’. He says that: “There was considerable support for greater use of mediation (which I am keen to promote), but also for extensive public education to assist separating parents to make their own decisions about their children.” The latter has been suggested a number of times recently – it would be nice to see the suggestion taken up by the powers that be.
Lastly, on the subject of reform, Sir Andrew says that the online divorce system has recently been opened up to for all legal professionals to use, rather than just litigants in person, and that the online private law children application is now available to all unrepresented parents. The latter, he says, “provides ‘nudges’ towards mediation and other forms of dispute resolution, and advice on safety concerns together with sources of support and advice.”
You can find the View from The President’s Chambers here.
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