The Family Justice Reforms

A Guide to the new PLO

“The family justice system is undergoing the most radical reforms in a lifetime. The process of reform is little shortof revolutionary.”

“Failure is not an option”

View from the President’s Chambers – the process of reform.May 2013 Family Law

Overview

• In the first ‘View from the President’s chambers’, the President divided the reforms into 3 parts:

• 1. The creation of the Single Family Court• 2. Transparency – improving access to and

reporting of Family Proceedings (not for today – but coming soon)

• 3. Streamlining and improving the process in public law proceedings

The Family Court

• Launching in April 2014 with the passage of the Crime and Courts Bill

• Will include HCJs, CJs, DJs and Magistrates – wherever possible sitting under the same roof

• Will deal with all family cases save for 2 classes reserved for the FD:– Inherent jurisdiction cases (wardship/CP)– International cases (Hague)

The FPC will no longer exist

• Judiciary of the Family court to include DJMCs, Magistrates & legal advisers

• Magistrates to continue doing significant amounts of Public Law work

• Their legal advisors to have a pivotal role as members of the gate-keeping and allocation team of the Family Court

The Single Family court locally

• Geographical areas will continue to be led and managed by DFJs, subject to FDLJs

• Within each area, all hearing venues together operated as a single family court based in the DFC – ‘designated family centre’

• Single point of entry at the DFC for issue of process for entire area

• Centralised administration, to include listing, gate-keeping and allocation, and back office

• Limited local variation (drop off boxes) possible

Allocation Principles

• All County Court work to the Family Court• Except for reserved work, HCJ cases heard by HCJs

sitting in the Family Court• No more transfers to the High Court for complexity• Transfer up only by order of the President/HCJ• Gate-keeping and allocation team – a legal adviser

and a DJ– Every new case on receipt allocated to the appropriate

level and appropriate hearing centre

The Public Law Reforms

• Following from the proposals contained in David Norgrove’s Family Justice Review

• An inevitable response to the fact that the average length of care proceedings had spun out to 55 weeks

• The failure of PLO marks 1 and 2 to achieve real change

• A new ‘political’ determination, supported by the judiciary

• Underpinned by The Children and Families Bill

The Imperative• The need ‘to reduce the excessive length of far too

many care cases’• 26 weeks is ‘a deadline, not a target’• ‘Robust and vigorous’ case management will be

essential• The need to ‘get a grip on our excessive and in many

instances unnecessary use of experts’– A reduction in the use of experts– A more focussed approach where they are still needed– A reduction in the length of expert reports– New test – is the evidence of the expert ‘necessary’?

What if it doesn’t work?• But for an eye-opening trip to Scotland, the FJR

might well have recommended removing the whole process from the courts

• This therefore must be seen as not just a chance to improve the system, but also a last chance

• The 26 week limit will become a statutory requirement next April – but the current changes are both:– Lead by the judiciary, and– Created by the judiciary

• It is therefore vital that are seen to work in advance of April 2014

Why and how:

• The need to be quicker off the starting blocks – the FCMH within 12 days of issue

• The need for all parties by then to be informed and able to make representations

• The importance of the CMS in ensuring compliances – naming and shaming

• A multi agency approach – LA / Cafcass / Police / LAA / NHS/ HMCTS

• Prospects enhanced by the success of the Tri-borough (and subsequent) projects

Parallel reforms• Alongside the new procedure is a radical attempt to

standardise documentation produced within proceedings.

• The President’s Guidance of 1st July 2013 identifies those documents now to be required in set form, although some (eg. LA Case Summary) may be in a form agreed with the local DFJ.

• Other documents referred to in the guidance –– Allocation Proposal Form– Standard Directions on Issue and Allocation– Case Management Order

Collateral Advances• Also intended to encourage /demand the production

of more concise, focussed documents – - social work statements, - experts’ reports, - threshold documents, - case summaries

• Major drive to reduce reading required and sharpen the focus.

• Importance of following proper process underlined e.g.– Part 25 applications for experts.

The four stages of care proceedings:

(1) Issue, allocation and gate-keeping

(2) The First Case Management Hearing (‘FCMH’) and Second Case Management Hearing (‘SCMH’)

(3) The IRH

(4) Final Hearing

(1) Issue, allocation and gate- keeping:“the local authority must deliver its material – the rightkind of material – on day one. If that does not happen the entire timetable will be thrown out.”

- ‘slimmed down’ list of documents to be filed by LAwith a focus on the last 2 years.

- Allocation decisions now governed by the President’s Guidance on Allocation and Gate-keeping, also of 1st July.

- This will govern until allocation procedures for the SFC come into force in 2014

Gate-keeping Teams

• Each DFJ to lead a team at each care centre• Also, Justice’s Clerk & and equal number of

DJs and Legal Advisers• All applications for care or supervision orders

to be allocated within next working day or sooner

• Decisions based upon content of Allocation Proposal Form

Allocation Proposal Form• There is a detailed allocation schedule for division of work

between Judges of the Family Court (FPC / DJS (CC and MC) and CJs / HCJs).

• On the APF, it is a question of ticking the box or boxes that apply to the case in hand

• Schedule divided into 2 parts – – Those in Part 1 may be heard by a DJ or Recorder– Those in Part 2 to CJ, Recorder or HCJ, and not a DJ unless

released by the DFJ

The Allocation Schedule• Both parts are broken down into the following categories–

– Risk Assessment Issues– Issues relating to ethnicity or religion– Non-subject child is a party– Capacity issues– Possible conflict of evidence– Novel/difficult point of law– Existing proceedings relating to the child or a sibling– High Court reserved jurisdictions

Detailed Arrangements• Recommended that the DJ & legal adviser spend an

hour per day together considering new files• The reasons for their decision are required by the

APF• For now, if the case is to be heard by a judge,

transfer to the CC or HC still necessary.• In the event of disagreement, decision referred to

the DFJ• Arrangements for review/urgent cases/monthly

consultation with DFJ to ensure consistency• Standard directions will issue on allocation

Guidance on Continuity and Deployment

• 3rd Guidance document issued on 1st July stresses importance of judicial continuity in determining allocation

• Detailed guidance on deployment and docketing of judges– Eg. Public Law CJs should sit not less than 40% of

their time in Public Law– Public Law DJs not less than 40% of their time in

both Public and Private Law

(2) The FCMH

- To be held within 12 days of issue

- The lynchpin of the new process – to be effective has 4 requirements:- LA must deliver ‘the right kind of material’ on day 1 –

shorter & more focussed- CAFCASS has to be able to deliver analysis & advice at

FCMH. If these are achieved, then:- Court must adopt vigorous case management re

timetabling & experts- Court & legal advisers to adopt ‘more robust approach with

parents’ – in terms of time for full response

26 Weeks:

-An ‘aim’, ‘track’, ‘target’, ‘aspiration’, ‘rule’ or ‘limit’?“An end not a means”

-“the court will draw up a timetable for the proceedings with aview to disposing of the application – (a) without delay; and (b)in any event with the aim of doing so within 26 weeks…”

-“A comparatively small number of exceptional cases apart,we can and must meet the 26 week limit.”

- In what circumstances will cases be permitted to go beyond 26 weeks?

- How will such extensions be granted?

Experts:

“Three things are needed: - first a reduction in the use of experts:- second, a more focussed approach in the cases where

experts are still needed; and, - third, a reduction in the length of expert reports.”

Part 25 FPR, Practice Direction 25B, - “the court is under a duty to restrict expert evidence to

that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”

A new mind-set• The need to consider under Practice Direction 25C

“why the expert – evidence proposed cannot properly be given by an

officer of the – service… or the local authority…”

• ‘If in doubt, do without’• The importance of what the LA can offer at the

FCMH – the Tri-Borough resourcing must be matched elsewhere

• The need for a SCMH– Only where all issues cannot be properly timetabled at the

FCMH

A few notes about the CMO

• CMS has from 1st July been updated to include a record of the three reasons why cases may change track. The only way that information will be available to those completing CMS will be through the new Case Management Order issued by the President on 26th June.

• The new Case Management Order must be used in all cases from 1st July irrespective of whether the PLO is yet implemented locally.

• The use and correct completion in every PLO case of the Case Management Order is essential, not least because its correct completion is a necessary pre-requisite to the accurate logging of data on CMS.

IRH

- At IRH Court identifies the key issues to be determined and the extent to which they can be resolved or narrowed

- Court utilises case management powers to resolve issues by hearing evidence:

“… such a flexible approach must be taken in accordance with the overriding objective and to secure compliance with section 1(2) of the 1989 Act and achieving the aim of resolving proceedings within 26 weeks…”

- Court identifies remaining issues (if any) to be resolved at the final hearing and gives directions.

Final Hearing

• These are the hearings most likely to be released to recorders, given the need for judicial continuity during the case management process

• The timeline for the child– Judicial confidence that dramatic reductions in the

length of hearing times is not producing unfairness or injustice

– No suggestion that the welfare of children or fairness of process compromised

Ensuring compliance:

- Local authority resources (or lack) not to be a reason for delay. - If not able to comply with timetable for the child then

- e.g. ISW at LA’s expense.

- Culture of self reporting to be encouraged, and duty on other parties to ‘whistleblow’.

- Compliance Courts

- If large scale failure by LA then monitoring officer to be informed and directed to report

Other Positives

• Agreed ‘statements of expectation’ and national protocols with other agencies who will be held to account for breaches, overseen by Family Justice Board

• Real determination to ensure ‘26 weeks’ does not lead to injustice for parents, extension where ‘necessary’, creative use of orders – CASMOs, COAHs

• CMS as a shield against criticism if delays persist

Exploring some concerns

• Will a reduction in global psychological assessments make it harder for parents to succeed in proving their case? Hardly

• Will the new process mean more long-term admissions into the care system/adoptions? Not on the basis of the tri-borough pilot

• Was the length of time previously taken to resolve care proceedings acceptable? Absolutely not

And some more• Will solicitor’s task be any harder in the new regime? Much

more focus before the FCMH, but once that achieved, process should be clearer – front-loading

• Will counsel’s task be any harder? No, not if pre-application work is properly done –– instructions should be much fuller from the outset, and – threshold documents limited to 2 pages

• Will the judge’s task be harder? Possibly, in that they are taking the same decisions but with less information – but that should not affect the quality of the decisions, if what is lost was not necessary in the first place

What’s the worst that can be said?

• Local authorities are going to have to work much harder in pre-preparing applications

• CAFCASS are going to have to maintain their improving rate of reliability

• Expert evidence will be limited to what the judge needs to make a decision, and no more

• The Judiciary are going to have to start placing more trust in local authorities at the care planning stage

But – is any of that really so bad?

Which means…

• Much better to work to ensure the success of the changes than not, as is already happening

• The alternative future would be so much worse for the families involved in the system – a tribunal system with no judicial involvement at all

• The CMS will identify where agencies are failing, and it will then be down to the government to sort them out – not the courts

The Key

• To make sure that the system works, and within 26 weeks in nearly every case, before April 2014

• To that end feed-back from all operating the new system is essential

• Come next April, appropriate adjustments will be far less easy to implement

NC September 2013