‘Obligation for better justice for children’

Mr Justice Ryder’s proposals to reform the family law system come at a key time, says Frances Gibb

The family courts are facing what Mr Justice Ryder last week called “the biggest change to the family justice system since the Children Act 1989”.

It’s a familiar message, as the judge acknowledged. There have been many such reviews over the past 20 years — with calls for a single family court. Why is this different?

First, the workload of the family courts is at an all-time high. The number of applications to remove children from one or both parents has soared, from 20,000 in 2008 to nearly 30,000 last year — fuelled by the tragic case of the death of Baby Peter in November 2008.

Partly as a result, delays in those crucial cases over where children should live have reached record levels. Last spring, the average case took 57 weeks, although efforts by judges to speed up cases are already bringing results: in the last quarter, the figure had fallen to 51 weeks.

Lord Judge, the Lord Chief Justice, last week condemned the delays as unacceptable: “For a child, any delay represents a substantial proportion of its life.” The increased workload in what are sensitive and difficult cases that often change the life of a child had highlighted the need to “overhaul and modernise” the way the family justice system operates, he said.

So there is a recognition across the board of the need for action. Judges, lawyers, social workers and experts are all endorsing change. “I have not known such a strong consensus for change on the bench or at the Bar,” Mr Justice Ryder said.

His comments came as he published his report into the modernisation of family justice, a set of concise and practical proposals by judges in response to the Whitehall review of family justice last November under David Norgrove. (see report on www.judiciary.gov.uk).

The reforms — a mix of changes to structure, procedure and, crucially, culture — do not need legislation but will be introduced in parallel to proposed changes by the Government.

What are they? First, there will be a new single family court for all magistrates and judges dealing with family cases, involving a network of family court centres. Where possible, judges and magistrates will sit in the same building.

Second, there is to be much greater judicial continuity: circuit judges handling childcare cases will have to sit for not less than 40 per cent of the year on those cases and not be away from their court centres for more than four weeks. Cases will be allocated to one of three pathways, according to urgency, with a fourth pathway for the “private” family cases — those between parents and not involving the State, such as contact and residence disputes.

Above all, judges will take charge of their own courts or, in the words of Lord Judge, move from being “traditional referee to active case manager”. They will be responsible for allocating cases and listing, deployment and for managing cases under strict timetables. The new time limit for all but exceptional cases is 26 weeks.

Finally, Mr Justice Ryder signalled the end of lengthy hearings involving numerous expert witnesses. The “misuse and overuse” of such experts must be curbed and poor-quality evidence rooted out, he said. “Quality does not depend on quantity.”

There is another significant difference that makes reform compelling now: the withdrawal of legal aid for divorce-related disputes from next April is expected to lead to a big rise in people heading to court without the benefit of lawyers. Ministers hope that many such disputes will be diverted to mediation and resolved out of court. But some will not.

This means a new and different role for judges. The judiciary, Mr Justice Ryder said, must take steps to ensure that those entitled to family justice are provided with access to it, represented or not. It means a more interventionist and inquisitorial role: there are likely to be curbs on the right of one party to cross-examine another (where one is particularly vulnerable, for instance). Instead, judges will have to identify the issues and ask questions themselves. Meanwhile, new guidance and materials are being drawn up to help those without lawyers.

The impact of the rise of such litigants is the big unknown. While their cases (usually over contact or residence of children) will not draw resources from the judges sitting on childcare cases, they will increase costs overall. Research for the Law Society by King’s College London estimated a 50 per cent rise in costs where lawyers are not involved, resulting from court costs and delays: they put the figure conservatively at £273.50 per person.

With the courts facing a 25 per cent cut in their budgets, the question of resources could be the chief block to reforms having their full impact. Lucy Scott-Moncrieff, president of the Law Society, said that without those resources, achieving the aims of the Ryder report would be “a challenge”.

“The rise in numbers of unrepresented participants following the cuts to legal aid will put enormous pressure on the courts and the family justice system as a whole,” she said.

There is also the wider question of the law affecting families who break up. As William Healing, family law partner at Kingsley Napley, put it: “Streamlining proceedings will help children. However, the Government fiddles with the court structure while starving the system of money and failing to reform actual family law on no-fault divorce, prenuptial agreements and cohabitation.” Marilyn Stowe, senior partner of Stowe Family Law, endorsed the Ryder aims as “laudable” and the best in tough circumstances. But she warned that unrepresented litigants could still “clog” the system: they needed more than materials to assist them, she said.

Financial concerns aside, reaction to Ryder is positive. Christina Blacklaws, director of family law at The Cooperative Legal Services, said that present 13-month delays in childcare cases were “totally unacceptable”. Everyone involved should ensure that the opportunity to reform the system was “grasped with both hands”.

Hazel Wright, family partner at Wedlake Bell, welcomed the role of the High Court “at the centre of reforms but distinct” (it will not be part of the new family court), so that complex cases would still be dealt with there. Claire Blakemore, family partner at Withers, said that while judges can be criticised for being out of touch, the Ryder report was “at the cutting edge of the problems faced by the ‘overstretched’ court service”.

In summary, she added, the judge had embraced the Olympic spirit, describing the process of creating a unified family court as a “once in a lifetime opportunity . . .” But as with some of the athletes, a “gallant effort” was not enough if the resources for the training and back-up are not there.

It is, though, the best chance yet. In Mr Justice Ryder’s words, there is a “clear recognition that a change of culture is required to root out unnecessary delay while maintaining the quality of the decisions we make”. And, as he put it: “We have an obligation to provide better access to justice for children.”