As readers may be aware, the current Lord Chief Justice, Lord Thomas of Cwmgiedd, is due to retire on 1 October. However, before leaving he has had a thing or two to say about the family justice system.
A couple of weeks ago Lord Thomas laid his final annual report before Parliament. In it he reviewed developments in family justice over the year, mentioning in particular the crisis caused by the sustained increase in public law cases.
Lord Thomas subsequently expanded upon that, and other matters, in an evidence session before the House of Commons’ Justice Select Committee, on 14 September. Some interesting points were raised, in particular in relation to three issues.
The first issue was that one about the increased workload of the family courts, and how it might be dealt with. Lord Thomas said that the Cabinet Office is looking into the reasons behind the rise, but its findings had not yet been made public. It will be interesting to see those findings, although it is not difficult to hazard a guess what they will include. He said that the number of court days devoted to family work is increasing all the time, and that the demands of family work are having an impact upon other areas of civil justice, as more judicial resources have to be devoted to family work.
As has been widely reported, Lord Thomas told the Committee that one of the things he does, although it makes him uneasy, is to authorise judges to be brought out of retirement to deal with the high work load of the courts. However, interestingly this does not mean using retired family judges, but rather using retired civil judges to do civil work, freeing up other, non-retired, judges to do family work. I wonder if there is any reason for not using retired judges to do the family work.
The second issue related to the increased numbers of litigants in person now using the family courts. As Lord Thomas quite rightly said, forcing parties to family disputes to confront each other in court without lawyers can often make matters between them even worse. He also made the point that mediation is more likely to be successful with lawyers, as the lawyers are likely to recommend that the parties accept what the mediator suggests, as that is what the court is likely to order anyway.
Most interestingly, Lord Thomas said that there were three possible solutions to the problem of litigants in person. The first would obviously be to go back to the old legal aid system. Another solution would be to do what has been done in California, which is to provide the parties with an employed lawyer in court who can advise. Thirdly he said, admitting that this may be more difficult, organisations such as Citizens Advice could be used to advise the parties. He said that the judiciary was adapting to the problem, but that there was a limit to what the judiciary can do to solve the problem without more work coming back, which is obviously not what is wanted.
The idea of an employed lawyer at court, rather like a criminal duty solicitor, is an enticing one, but there are at least two obvious problems. The first is that the government would have to pay, and I can’t see that happening. The second problem is that there is only a limited amount of help that a lawyer at court can do without being able to prepare the case beforehand. Still, I suppose it would still be better than no lawyer at all, and I’m sure many litigants in person would be only too happy to have some legal help at court.
The third issue is one that is close to my heart – security in the courts. I recall writing about this on my own blog many years ago. Lord Thomas said this was a particular problem with family matters, where emotions are running high, with some of the most serious security incidents occurring in family cases. Court staff had been attacked, and there was at least one case where the judge had had “really serious problems”. HM Courts and Tribunals Service was taking steps to improve security, and had found that there were “serious deficiencies” in security, that are affecting litigants and judges. Lord Thomas said that the police now understand the problem – my own view has always been that there should be police or other security officers present in family courts at all times. I realise that this has cost implications, but surely the safety of those who work in and use the family courts is more important than money?
As I write this a transcript of the Justice Committee evidence session with Lord Thomas is not yet available, but you can watch a video of the session here.