The panel expresses itself greatly dispirited by the lack of cohesion in the different arms of the family justice system; it has attacked the current dysfunction of the structure of family justice, raising its concerns about the effectiveness of the system for its users. It has made wide-ranging and fundamental reforms for the system and of its individual parts.
FJR and the Government: same issues, different treatment
Inevitably, the FJR comprehensively examines and discusses many of the issues which were considered by the Government in its Legal Aid Green Paper (Proposals for the Reform of Legal Aid CP12/10, Cm7967: “Legal Aid Green Paper”); it is startling to see the same issues receive such different treatment when viewed through their different lens.
Proposed “scope” changes
The removal from “scope” of large numbers of private law cases was one of the dominant proposals of the Government’s legal aid reform; the Family Bar, the Judiciary, the solicitors’ profession, children’s organisations, and voluntary social support organisations spoke out loudly against these proposals. We drew attention in our responses to Legal Aid consultation, and in our evidence to the FJR, to the large number of private law cases which are not capable of (or indeed suitable for) mediation, in which serious issues of child abuse – emotional, physical or sexual – arise. Whether the Government recognises and accepts these points remains to be seen. The FJR does. It acknowledges the clear “overlap” between public law and private law, and the “significant” number of private law cases which are on the cusp of child protection, in which “serious child welfare and safeguarding concerns are raised, to a level that may well trigger investigation by local authorities”; the FJR panel rightly recognises that “where there are concerns for the child’s safety or for a vulnerable adult swift and decisive action must be taken to protect them”. The FJR further accepts that “without scrutiny, it is possible that these concerns may never have come to light.” It explicitly recommends that “the state must ensure, when people seek assistance to resolve disputes around separation, that there are sufficient means to identify and protect those who are at risk” – and “means” surely includes (albeit is not limited to) legal representation.
The FJR recommends that many private law cases can (and ought to) be diverted away from the court through mediation and other forms of alternative dispute resolution, and that “people need to expect that court should be a last resort, not a first port of call”. In advocating this, the authors of the FJR Interim Report (unlike the authors of the Legal Aid Green Paper) have been re-assuringly frank about the lack of reliable data available to assess the effectiveness of mediation: “evidence on effectiveness is mixed … high quality evidence on the effectiveness and cost of mediation seems to be lacking. The proliferation of different approaches to mediation makes it difficult to draw firm conclusions.” The panel nonetheless does recognise that “many complex cases do come before the court”, and cases involving significant risk emerge lurking behind the seemingly anodyne paperwork (“in 29% of 140 cases where applicants answered no to the harm question, examination of the court case files revealed evidence of a high level of violence” – per Aris & Harrison). This evidence lays bare the flawed assumptions in the Legal Aid Green Paper about the character of private law family litigation.
The inevitable consequence of the proposals to remove legal aid in most private law cases will be the significant increase in the number of unrepresented litigants before the family courts – a prospect which has been under-estimated in the Legal Aid Green Paper. The FJR acknowledge that the unrepresented litigant in family law proceedings find the system “confusing”. These are people who will have “limited legal expertise” and will “need greater support from the court during their proceedings”; there is clear belief that this “may lead to longer cases”. The FJR panel acknowledges that “it is difficult for adults to navigate the system on their own” (perhaps not even knowing their entitlements) and the panel refers to the experiences of two anonymous respondents to their call for evidence which highlighted this: “for one, ‘it is a minefield and not clear what the processes are. Forms are too complicated and lengthy’. Another notes simply, ‘a lay person is easily lost’.” In as clear an indication that the FJR is concerned about the Legal Aid Green Paper proposals, it adds (§2.47):
“Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. This complexity will, as a result, become an increasingly important weakness.”
The FJR’s function is to take steps to remove “weaknesses” in the system, not increase them. The panel adds that they have concerns “both as to the ability of litigants in person to conduct their case effectively and as to the inevitable increased burden in terms of time and resources this will place on the court”. More concerning still is that “some parents will simply not pursue their dispute leading to some children losing contact with a parent”.
The value of lawyers
The Legal Aid Green Paper is largely silent about the role, let alone the value, of lawyers in the family justice system; the FJR panel, by contrast, rightly evaluates our contribution, and appropriately discusses the functions of the Family Bar and solicitors in and out of the courtroom; it draws on the valuable research undertaken by John Eekelaar and Mavis Maclean. The FJR accepts that where lawyers are involved in family law issues concerning money or children, the majority are resolved either without a court process or without a contested hearing. While rightly concentrating in the Interim Report on dispute resolution processes which minimise the roles of lawyers and courts, the FJR panel importantly and explicitly accept that “where a dispute has to go to court, our view is that legal representation supports the parties, assists the court, shortens and focuses the court process and enhances the prospects of resolution.”
The Family Court
The FJR pays proper tribute to the role of the family court – far from being castigated as the cauldron which foments disputes, courts are seen as “focused” on “encouraging parties to reach agreement”. Although the private law system has been criticised in some quarters as being overly adversarial, the FJR panel found that in practice, “the processes are designed to reduce this impact. The focus at all times is to ensure, as far as possible, that parties come to an agreement, rather than continuing to a judicial determination”, and this was applauded.
Taking children into care
Furthermore, the mythology which penetrates certain sections of the media that children are removed from families into care on arbitrary, even spurious and baseless, grounds is dispelled – as we know, “the decisions to take children into care are …carefully considered and are subject to independent and rigorous scrutiny”; it is recognized that “the protection of parents’ rights and interests is a clear priority”. The FJR have seen for themselves that parents in care proceedings “have access to significant support particularly from their legal representatives.” It adds, “we have been impressed by the great care taken by the courts and all those involved in these difficult decisions.” Although concerns are expressed about the way the children’s voices are heard in these proceedings, the FJR panel felt that the interests of the children are well protected, “particularly through the mechanisms of guardians and legal representation”. However, proposals for the reform of public law focus on re-drawing the line beyond which the court will not go in considering and approving the care plan: “Judges and the representatives of both adults and children need to recognise the limitations of the law. 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.”
FJR view of Family Bar
How, then, did the lawyers (the Family Bar and solicitors) themselves fare in the FJR review of the family justice system? What did the panel think of the work we do, and how we do it? Generally, the FJR speaks with admiration of the dedication and capability of all those who work in the family justice system; far from castigating the lawyers, it applauds their industry. There is recognition that the work is “hugely demanding and often highly stressful”, and it praises the good working relationships in many areas which have led to the development of innovative practice designed to improve the way the system operates. The FJR panel also appears to recognise that “changes in legal aid provision over the years have reduced the morale and status of legally aided family lawyers. There are also concerns about the sustainability of this part of the profession”. The FJR Interim report is an extremely welcome (and regrettably rare) voice in what has been for years a unrelenting refrain from the Ministry of Justice that lawyers are the cause of, or at the very least contribute to, many of the problems in the system. It sheds positive light in what has in the last few months been the “perfect storm” of legal aid reform, new fee schemes, and increasing numbers of protocols adding burdens for the family bar.
Lessons to be learnt
There are messages for the Family Bar to learn from this report. Criticism is made of weak and inconsistent case management, particularly in public law field; although the principal target for criticism appears to be the judges not the lawyers, there is a concern expressed to the FJR that poor case management includes “allowing the parties to dictate how long hearings should last, and allowing too much time for hearings”; late delivery of case management documentation was cited as a contributor to the problems. There are proposals for inter-disciplinary induction for all those working in the system – including the lawyers.
Family Justice Service
By the time of the publication of this piece, the Government’s response to the Legal Aid Green Paper will probably be known. It is expected (though not assured) that the plans set out in the consultation paper will be largely pursued; if so, such a course would ignore the FJR’s proposal for bringing the family legal aid budget under the umbrella of the Family Justice Service – a service which will, inter alia, manage the budget of the many consolidated functions of family justice. The FJR panel considers that were legal aid managed as part of the overall family justice budget “there would be opportunities to shift money between activities, from court work to mediation for example”; this “would enable the Family Justice Service to take a more holistic approach to ensuring there are available services to support these families.” It adds that “the Family Justice Service should manage relationships with mediators, legal providers and experts. In time, with responsibility for the legal aid budget, it could procure their services”. How this would leave the Family Bar, what this would do to rates of remuneration, and “scope” of remuneration, it is difficult to tell; but the joined-up approach to family justice is welcome, and timely.
The FJR Interim Report signals many positive changes for Family Justice; it is an insightful, well-researched, and evidence-based review of a system under stress, still regarded (as acknowledged by the FJR) as the “poor relation” compared with other parts of the justice system. The panel not only demonstrates a sound understanding of the operation of family justice, it has made sound proposals for reform. The proposals will be generally positive for the Family Bar, and we welcome the restructure and re-invigoration of a system to ensure that family justice assumes its correct place in the “justice” system; rightly, consideration is being given by the panel to placing a positive obligation on the Minister to demonstrate how children’s interests have been given priority in the administration of justice.
…but will the Government take notice?
But will the Government pay attention to it? According to the Centre for Social Justice (Building a social recovery – May 2011), the Coalition Government has so far scored a paltry 2/10 in its report card for the year in its endeavours to tackle family breakdown. The plans to reform legal aid – if pursued largely as drawn – are unlikely to raise its score. The Government will ignore the work of the Family Justice Review at its peril. If it does, the principle losers will be the vulnerable families it claims to wish to protect.
Stephen Cobb QC, 1 Garden Court, Temple