“The current delays are scandalous and unacceptable,” he says. “These are things which are going to happen. Get on board and understand that.”
The key reforms he is bringing about include the creation of a single family court, new rules restricting independent expert witnesses, and most controversially, new rules restricting care proceedings to a 26-week time limit. He also plans to make family justice more transparent.
The purpose of the single family court is to reduce inefficiency. Currently there are three different courts (the Magistrates, the County and the High Courts) with cases being transferred up and down. With a single family court, the process will be streamlined.
“A key component of the [single] family court is the gatekeeping allocation,” the President explains. This team will include a district judge and a Magistrates’ court clerk who, as soon as a case comes in, will allocate the case to the appropriate tier of judiciary and geographical centre. “That means that the destination of the case is determined once and for all right at the outset, and thereafter things will proceed more quickly and more smoothly than at present.” The family court will include magistrates as well as other tiers of judges, and will deal with all family proceedings, with the exception of international and wardship cases, which will remain in the High Court.
The inclusion of magistrates in family proceedings has always been controversial, with many practitioners believing both that their slow decision making causes delay, and that they are not qualified to make the big decisions that are required in care and adoption cases.
“I’ve never accepted the idea they [magistrates] can’t do care work. They can,” says Sir James. “Quite apart from that, we actually need them. The reality is we are facing a time of static or declining resources and an increase in case load.” All they need is more practice, he suggests.
The new courts are to be in place by April of next year. London will have three, in the east, west and in the centre (at the same location as the Principal Registry of the Family Division in Holborn). A new court is being set up in the financial district in the Docklands. The President is brimming with confidence. “It is a tremendous opportunity and I think it is going to enthuse people.”
“The Bar of course will no doubt gripe and grind,” he adds, “(as) it takes marginally longer to take the tube and DLR to the Docklands than it does to walk to Avenue House [in Holborn].”
Both the Bar and solicitors have been doing a certain amount of ‘griping and grinding’ about the the 26-week time limit in care proceedings. Until recently, it was not unusual for care cases to continue well over a year. This was due to a multitude of factors – delays in court listings, delays due to multiple assessments of parents and children by local authority and independent experts, and delays in evidence being filed by the parties. There was also a culture where the court felt under a duty fully to explore all options, however remote, to see whether a parent or a family member could care for a child, before a care order was made, even though delays are perceived as damaging to the child.
The President believes that “Justice delayed is justice denied”. He also believes that the new system will be better for parents. “It stands to reason that a parent would much rather have a decision in six months than in one year or eighteen months.”
Critics within the family justice system believe that the 26-week rule is unlikely to succeed due to the logistics of getting all necessary assessments and evidence in place prior to a final hearing. The President doesn’t accept this. “There are many places where 26 weeks is already being achieved, or very close to being achieved. So the simple fact is it can be done.” He’s waging a hearts and minds campaign to persuade people of this. “Once people are persuaded, ...everything else falls into place, and [they will] make sure it will be done. The trouble is, particularly within some sectors of the legal profession, there is a lack of acceptance that it must be done, feeding into a lack of acceptance that it can be done and therefore a prediction that it won’t happen. Well, that is simply the wrong mindset.”
One way of ensuring the 26-week timetable is kept is the new rule restricting expert evidence to that which is ‘necessary’ as opposed to ‘reasonably required’.
“What I am not prepared to tolerate... is that very often at present, the argument put forward by advocates as to why one needs a different kind of expert is nothing more than a general whinge – mother doesn’t have confidence in the local authority, the local authority social workers are not particularly expert, something else may turn up, can we please have a proper expert? That’s obviously a parody of the position, [but] that is often the underlying reality of the kind of applications that are being made. There is just no substance to that at all.”
The President is also eager that social workers and Cafcass officers should be reinstated as experts in care proceedings. “Social workers feel deskilled and demoralised.” They are enthusiastic about the proposed changes and “see it as very exciting in terms of the restoration of themselves to where they ought to be as experts”.
The President has been publishing a monthly paper entitled View from the President’s chambers (available online), setting out the new rules and how the modernisation programme is progressing. He has also been going round the country, meeting with family justice professionals “encouraging, cajoling, nagging or what have you”.
He says “the local authorities and Cafcass are completely fired up”, and so are the judges and court staff. However, at a meeting earlier in the year with family lawyers and judges at the Principal Registry of the Family Division in Holborn, his plans were met with a barrage of criticism.
“I’d be the first to accept that it was far and away the most negative meeting I have attended by a very long margin.”
At the meeting, it was put to the President that the 26-week rule was all part of a political agenda to get children in care proceedings adopted more easily. Doubts were also expressed that social workers and Cafcass officers were up to keeping to a speeded up timetable.
One specific criticism came from District Judge Nicholas Crichton, a founder of Family Drug and Alcohol Court in London, who said that for parents with addiction problems, the timescale for possible rehabilitation with their children required 52 weeks of court involvement as opposed to 26.
The President accepts that, as long as courts “have a robust and serious rather than a sentimental view at the outset about the prospects of rehabilitation.”
In cases where there is a realistic prospect of rehabilitation between parent and child, he says “there are always three questions. One is, is there a real basis for believing that there is going to be a change? Secondly, what is the realistic view as to whether the mother will stick with it? And thirdly, even assuming that the answer is positive to those two questions, is the mother going to be able to turn herself around within a year?” He adds “you won’t get onto that system unless you show at the outset there is a real basis founded in what’s happened, and not just some sort of death bed bang on the door… it’s no good mother turning up and at the first hearing and her advocate saying she now realises she’s got to change her life. The question is what has she so far done?”
At the meeting at the Principal Registry of the Family Division, the President stated that should the 26-week rule prove to be a failure, then the government would consider changing the current system so that care proceedings will dealt with by tribunals as opposed to courts. However, the President is wholly against such an outcome.
“If you have a tribunal system, you are merely transferring the burden somewhere else, because there will have to be an appellate structure, and there’d also be judicial review. So the judges that you save from the family court will be matched by an equal number of judges sitting in the administrative court dealing with judicial reviews and appeals.”
The President also believes that family courts should retain jurisdiction over care and adoption proceedings as a matter of principle.
“Almost uniquely we [the jurisdiction of England and Wales] allow for compulsory adoption. That is the outcome of a significant amount of care cases, and that is, and I’ve been saying this for ten years or more, one of the most drastic forms of intervention that any judge is able to make in this country. And I suspect if you gave many parents the choice between going to gaol for ten years and losing their child forever, a significant number would say I would go to gaol.”
In spite of the demands of pioneering the modernisation of family justice, the President appears to be enjoying his role.
“It’s an immense challenge. It’s immensely enjoyable. It is immensely time consuming. I have never worked as hard in my life as at present in terms of the hours.”
However, he has had little time to sit as a judge.
“It is very important one is seen to be a judge. After all, the primary job is being a judge.” He plans to sit more this Autumn.
Chris McWatters, Garden Court Chambers