Thursday, 3 November 2011
FAMILY JUSTICE REVIEW
FAMILY JUSTICE REVIEW
PART 1 : PUBLIC LAW
So...the much awaited final report of the ‘Family Justice Review’ has been published today. It is not light reading stretching to some 226 pages full of detailed analysis and recommendations. The report is essentially divided into 3 areas:
· The family justice system
· Public Law
· Private Law
Over the coming days and weeks I will attempt to sketch out and consider the main recommendations and implications from the report. Today I intend to focus upon the recommendations about Public Law.
However it is worth first considering the proposed context within which these proposed reforms may take place.
In the forward to the Review David Norgrove comments that:
“We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child. These delays contribute to the 2 years 7 months it takes on average for a child to be adopted. With 20,000 children now waiting for a decision, delay is likely to rise further.”
The Panel found that there was a substantial lack of joined up thinking between the various parts of the family justice system, no clear accountability between different organisational structures. The huge concern noted about the delay of decisions for children in care cases (now apparently having risen to over 60 weeks) feeds into the wider point about delay for children who have a plan of adoption. Unsurprisingly this chimes well in terms of timing for the current debate about how to reduce that delay for adoption.
So in summary it is clear that the idea of providing a unified approach to family law (through it’s various organisations) reducing delay and of course putting the welfare of the child at the centre are the various strands that underpin many aspects of the recommendations.
I will deal in a later blog in more detail about some of the organisational/structural proposals being made. However the key recommendations appear to be:
· The establishment of a ‘Family Justice Review’ which would have responsibility for the whole of family justice (including the courts and court social work services (i.e. formerly CAFCASS). It also suggest (given it is proposing that this FJS be responsible for the budgets of courts etc) that in time there may be ‘potential’ to manage the supply of expert witnesses and solicitors for the children.
· The appointment of a Vice-President of the Family Division to better support the President. Greater leadership roles and monitoring.
· Aim of Judicial Continuity in all Cases [That of course has always been the laudable aim but manifestly difficult to achieve in practice] It is proposed that this could be assisted by encouraging Judges and Magistrates to specialise in family matters.
· The idea of a Single Family Court which would be the only point of entry [save for the High Court point below] to replace the current 3 tiers of court. All levels of Judiciary (i.e. Magistrates, DJ’s and CJ’s) would sit in the family court and work allocated according to complexity. The report does however suggest that the Family Division of the High Court remain to deal with inherent jurisdiction and other international work. In the more complex care cases/private cases it is proposed they still be in heard in the single family court but by a High Court Judge.
Whether any of these structural changes can/will be achieved remains to be seen (as does the timescale) given on the idea of a FJS the recommendation is prefaced with the fact that ‘Any structural change will require investment. We understand that no new money is available to fund change before 2014/15’ and on the idea of a unified court ‘Capital investment will be needed in the longer term’.
PUBLIC LAW PROPOSALS
The detail of the reforms are set out at p91 onwards.
For those working in the care system some of the identified concerns are obvious e.g.
· Delay
· Local Authorities waiting too long before an application is made to the court
· Quality of social work evidence is not consistently good, fuelling distrust and a consequential over-reliance on multiple expert witnesses.
In making the recommendations it does, the report identifies the key tension that is the everyday experience of those in the care system: balancing the delay/outcome of the child as against the rights of the parent(s) to have a fair hearing and seek to continue for their child in the long-term. There is a clear drive in this report to try and redress that balance back towards quicker outcomes for children. One can see that if implemented it will provoke much debate in the wider public and if time-limits are set is going to cause conflict for the appellant courts from parents who feel they have not had a fair or proper assessment [all of which can only be amplified by the cutting of Legal Aid funding for experts].
Key Proposals
(1) The Court
· Still determine whether the threshold is made out. A re-focus however on the core issues of whether the child is to live with parents, other family or friends, or be placed in the care of the Local Authority, contact with the birth family. Other aspects of the plan should be the responsibility of the Local Authority.
· The review goes on to list areas that it would not expect the court to examine e.g. whether it should be residential or foster care placement, therapeutic support for the child, contingency planning. However it then states the proposed changes will have no impact upon placement applications as when adoption is in the care plan the matter will still be the full scrutiny of the court.
One can foresee huge problems with this. On one level it appears to be over-simplistic as very often a child in proceedings may have a whole range of specialist needs which would inform whether or not adoption or foster care is the right outcome for that child. It would seem odd that a court should have to determine issues such as those in the context of possible adoption without perhaps looking at the alternatives for the child e.g. residential placement under a Care Order. The review correctly points out that many Plans change for children particularly if in care for many years. However my experience is that the courts are already full aware that Care Plans are not static and that once final orders are made it is for the Authority to exercise its PR under the plan. However what the courts strive to do is ensure that when the final orders are made the Care Plan is as robust and as clear as it can be to provide the best chances for that child to thrive in its future.
[Part 2 of Public Law to follow tomorrow]
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