Since he became President of the Family Division in January, Sir James Munby has published a series of ‘reports’ upon the process of reform of the family courts, entitled View from the President’s Chambers.
The seventh View from the President’s Chambers has just been published. In it, Sir James looks at the “changes in the cultures and practices of the family courts” which we need to embrace as the reform goes forward.
Referring to the words of Lord Scarman, he said that “the task is to identify and preserve from the past what is of enduring value whilst ruthlessly jettisoning what no longer accords with modern thinking”.
He continued by explaining that “the guiding principles of modern practice in the family courts are judicial continuity and robust and vigorous judicial case management.”
As these become an ever more familiar reality, he said, we will “begin to see the old distinction between the adversarial and the inquisitorial systems increasingly breaking down.” Whilst much of the process will inevitably remain adversarial (after all, that is only human nature), the adversarial process will take place under the “watchful and vigilant eye of a judge who, as part of her inquisitorial responsibilities, will be responsible for ‘setting the agenda’, policing the orders she has made, and ensuring that the case proceeds in accordance with the timetable and directions she has given”.
Moving on, Sir James considered some of the things that he considers need to change, including dealing with delay and the attitude towards court orders.
As to delay, he referred again to the need for judicial continuity (i.e. that if possible cases should be dealt with by the same judge throughout) and robust case management by judges, aimed at ensuring that cases are dealt with as speedily as possible. However, he said that it was also important that court offices dealt with paperwork quickly and efficiently, although in my view much of the problem here is lack of resources.
As to court orders, Sir James referred to what he called the “slapdash, lackadaisical and on occasions almost contumelious attitude” towards orders made by family courts, for which there was “simply no excuse”. He said that orders were not “preferences, requests or mere indications” – they must be obeyed and complied with to the letter and on time. Referring to his recent decision in Re W (A Child), he said that non-compliance with orders should be expected to have and will usually have a consequence. It is a few years since I was practising, but I can recall many frustrating occasions of non-compliance with orders by the other party, as I’m sure can all family lawyers. All too often, the party at fault ‘got away with it’, which was always difficult to explain to my client. The message now is clear: you won’t get away with it. Let us hope that Sir James’s words are put into practice.
Sir James concluded by looking at recent successful attempts to improve both the process and the outcomes for those involved in care proceedings, such as the Family Drug and Alcohol Court, which ‘specialises’ in cases involving parental substance misuse, and aims to help to keep families together, where possible.
Change is in the air. Let us hope that it brings real improvement.