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Mr Justice Ryder proposes to overhaul our family courts

Today Mr Justice Ryder published his proposals for the modernisation of family justice. His aims: to improve the “workings” of family courts, and change the culture of family courts for children, families, judges, lawyers, social workers, Cafcass and social workers.

Mr Justice Ryder was appointed to this task in November 2011, following the publication of David Norgrove’s disappointing Family Justice Review. You can read the judge’s report here, and his main proposals are as follows:

  • The single family court. This new court will have a new structure. All levels of judge and magistrate will be members of the same court. They will sit as “Judges of the Family Court”. Judges and magistrates will sit in the same buildings, where possible.
  • A framework for leadership and management.  Existing judicial resources will be managed more effectively, to reduce delays in the court system. Better listing practices will improve the preparation and hearing of cases. Over time, it is intended that public law circuit judges will not be away from their court centre for more than four weeks, to ensure continuity for the cases allocated to them.
  • A framework for good practice. From the proposals summary: “Experts are misused and over-used.  The court must be adept at scrutinising whether the evidence is already before the court and whether further expert assessment is needed on the same issues.”
  • Public law case management. All but exceptional cases are to adhere to a 26-week timetable. There will be rule and practice direction changes relating to the use of experts. It will be made clear that other than sufficient adversarial fact-finding, the judge’s function in determining the welfare of the child is investigative. “Expectation documents” will set out, in plain language, what the court expects from family justice agencies. “A consistent but firm approach will be developed to litigants whether represented or not to ensure that issues remain in focus and are addressed within the timetable set by the court.”
  • Private law.  Litigants in person will receive guidance and advice materials in a variety of formats. For example a private law “pathway” will be published to describe what a court can and cannot do and how it does it.
  • Financial remedy cases. These are often heard elsewhere, but are to become a “major strand” of the new Family Court. However specialist services in London and elsewhere are to be preserved.
  • The High Court. “The Family Court will not absorb the High Court, but in future High Court Judges will regularly sit in the Family Court providing leadership to interpret and apply legislation, rules, practice directions and case law in decisions that provide binding precedent.”
  • The voice of the child. It is important to engage with children to help them to understand the process at every step, to ascertain their wishes and to give them the opportunity to make themselves heard. It is intended that over time, the majority of judgments can be handed down in an anonymous form, to protect the privacy of children and adults alike.

What Mr Justice Ryder wants to achieve is highly laudable. He intends to streamline the system, cut costs and speed up access to justice. For those of us who experience family law proceedings on a day-to-day basis the big question is, will his proposals have the desired effect?

What immediately struck me, when I read the 25 pages of proposals from beginning to end, was how challenging his task must have been. Reform is required but, at a time when budgets have been slashed and legal aid for divorce cases is set to disappear completely, how is it possible to overhaul the family courts while ensuring that fairness and equality – the bedrock of our family law system – are not lost in the mix?

My concern (and I note that others share it) is that these ambitious measures will do little to unclog our court system, which is creaking at the seams and has reached breaking point.

For example, as a result of straitened budgets and cuts to legal aid, the number of people going into court without legal representation has boomed. The rise of the litigant in person means that assumptions about cases being quick and easy to handle are often misplaced. Lawyers are, without a doubt, the backbone of the family court . Already the result of their removal , with diminished access to legal aid, has been mayhem. It is wrong, naive or even downright cynical to suggest that modernising the system will make swingeing changes to an already overloaded and overworked court. Or indeed that new approaches, by an increased number of designated family judges, is going to have much difference either. This is because a curt judge who cuts short a litigant, or is perceived not to have given a fair hearing, is going to be appealed or the subject of a complaint. It happens now, so why won’t the numbers just increase?

As is obvious from the numerous reported cases, those who represent themselves in court are far from easy to handle. Nor are their cases easy to resolve. Sometimes the cases involve complex areas of the law. When placed under pressure are judges, particularly deputy judges, sufficiently specialist to be able to handle these cases free from error?

Furthermore, self-representing litigants don’t usually have finely honed skills of negotiation. More often they  have no clue as to what the law is, or the requisite procedure. They don’t know how to handle themselves dispassionately in court, what points to make, what points to concede, how to present skeleton arguments to an already overworked judge… I could go on. And as for dealing with lawyers on the other side, that is a nightmare still to manifest itself. The Law Society has issued guidance about how lawyers should deal with litigants, but what about vice versa? And there will be trouble aplenty in store for everyone, when legal aid finally goes.

It is an outrage. Lawyers are still there for the rich, easing them through, but what about everybody else? Imagine if doctors were only treating the rich! There should be a continuing outcry to try and avoid certain disaster from April 2013, when legal aid finally goes.  The litigants in court don’t need more  “pathways” and materials “in a variety of formats”. They need access to lawyers!

Mr Justice Ryder has my sympathy, because he has produced his best possible report in extremely difficult circumstances. However I still believe that every effort should be made not simply to appease and cooperate, but to fight, fight and keep fighting to preserve the lawyers who proudly serve and hold together the family court for the benefit of every litigant, not just the rich.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known family law solicitors and divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. That_Guy says:

    It may be that getting rid of, or reducing, expert reports will actually help parents in “public law” child care cases. It will mean that Local Authority social workers will not be able to rely on a yet to be obtained, paid for by the LA, expert report, ie will have to have their “story” worked out and available at the start of the proceedings. Judge asks LA social worker :- Why do you want this child in care/adopted. LA sw :- Because I think the child is LIKELY to suffer SIGNIFICANT HARM if left with the parent(s). Judge :- Why is that? LA sw :- I don’t know. I’ll have to ask an “expert” we regularly “employ”. Judge :- You haven’t got time. Bleep off.

  2. Marilyn Stowe says:

    Thanks for this. I’m not a child care lawyer so can’t comment. As a private client lawyer, I can comment on the damaging impact of unrepresented litigants on their own cases and thus on the courts.
    I’ve gained the firm impression that ensuring a legally correct decision that can seriously affect a family for life, doesn’t matter as long as costs are cut.
    It’s a travesty.

  3. ObiterJ says:

    I basically agree. A few thoughts:
    1. Curt Judges will continue to cut short self-represented litigants – I’ve seen it happen. There will be no appeals because the SRL cannot afford it.
    2. Judges are too used to dealing with lawyers and, to be frank, only wish to do so. The lay magistracy may prove to be better at this but they are very restricted as to the family cases they will be allowed to deal with.
    3. There will be more MacKenzie friends – often “wannabe lawyers”
    4. Local authorities are also suffering massive cuts. Staff in LA solicitors and social services are phenomenally overworked. I do not exaggerate to say that the makings of a further Baby P case is there already and more cuts are to come.
    Having said all this, it is futile to pretend that the system did not have problems. Note (e.g) the recent case of T (A Child) decided in the Supreme Court. In the County Court, a fact-finding hearing took five and half weeks and cost £52K and that was before a judge. All this and delay is supposed to be prejudicial.

  4. ObiterJ says:

    I meant to add:
    5. The 26 week timescale in care proceedings is likely to become a straitjacket. It will depend on what the judges see as “exceptional.” I suspect that it will be very little but time will tell. If too strict a view is taken of what is exceptional then a lot of parents will be unable to keep their children. Take, for example, the single mother who has been heavily drinking but is on the road to recovery. She will probably be unlikely to satisfy anyone that she has recovered in the 26 week period allowed. Far from an unusual case but would probably not be viewed as “exceptional”?

  5. Bruno D'Itri says:

    Anyone for Badminton?
    Olympic officials introduced a ‘round robin’ stage in the Badminton tournament which meant that losing a game could lead to an easier match-up in the next round.
    Rather predictably, some individuals attempted to lose their round-robin match in an effort to better their chances of winning a medal.
    They were lambasted by everyone and disqualified by the Olympic officials.
    Shouldn’t the officials themselves accept some responsibility for this debacle?
    After all, it was their system which incentivised such unwanted behaviour.
    Similarly, whilst individual investment bankers gambled and lost huge sums, to the detriment of the banking industry, shouldn’t those officials in charge of the banking system have accepted some responsibility?
    Human behaviour is quite predictable. Many individuals will do what is in their personal interests, even if the behaviour is deemed ungallant.
    In my view, the officials in charge of a system which incentivises unwanted behaviour should bear some responsibility.
    Had the officials left the Badminton as a straight knock-out, and had the banks’ remuneration committees based bankers’ bonuses upon long-term rather than short-term gains, they would have encouraged desirable behaviour instead.
    What on earth has all this got to do with family law, you may well ask!
    Well, there is ungallant and immoral behaviour exhibited by many divorcing parents, for example, in the making of false accusations of domestic violence and child abuse and in refusing to abide by contact orders.
    Instead of deterring and punishing this abhorrent behaviour, the family court system actually encourages and rewards it by allowing an embittered parent successfully to exclude an unwanted ex-partner from the lives of their children.
    Sir Nicholas Wall, the President of the Family Division, accepts no responsibility whatsoever for a family justice system which facilitates and incentivises such abhorrent behaviour.
    Instead, he simply blames the parents themselves for “using their children as weapons”. He, like the Olympic and banking officials, relinquishes all personal responsibility for the system.
    Mr Justice Ryder ought to better understand human nature, and ought to overhaul the family justice system so that unwanted behaviour is deterred and punished, and good and cooperative behaviour is incentivised and rewarded.
    Bruno D’Itri

  6. Observer says:

    Unfortunately this is something that lawyers imposed on themselves by not having a proper regulatory body to discipline the excessive abuses of legal aid and the extremes of malpractice and misconduct that we see on a daily basis.
    Had the SRA and the Law Society functioned as they ought to have, the family law industry would not be perceived by the state and taxpayers alike as a complete sham, sexually discriminatory toward fathers, and promoting protracted litigation rather than amicable resolutions between parties.
    It’s hard to have sympathy for the lawyers here, but Marilyn is absolutely right to point out that the you-only-get-the-justice-you-can-afford scenario is neither good for children or their parents.

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