He may no longer be the President of the Family Division, but Sir James Munby still has a lot of important things to say, and remains someone who is well worth a listen. I have been looking at a speech he gave to the Bloomsbury Publishing Family Law Conference on the 25th of June, entitled “The Family Court in an age of austerity: Problems and priorities”.
The speech begins with a stark truth rarely said:
“It is a commonplace that we live in an era of austerity. But however great the temptation, in or out of Whitehall, to use this as a convenient explanation for the serious problems currently facing the family justice system, the truth is bleaker and more profound. For these problems have their roots in public policy, seemingly shared by Governments of whatever political stripe, long pre-dating the banking collapses and ensuing financial crisis of 2008.”
Yes. As someone who began practising family law back in the early 1980s I have witnessed this, often first hand. From the consistent failure to raise legal aid rates of pay, to crumbling court buildings and the abolition of legal aid for most private law matters, I have seen how the justice system has long been seen by Governments as an easy area in which to make cost savings. But those savings, of course, have come at a price. Sir James continues:
“The shocking condition of the court estate today reflects decades of neglect, under-spending and penny-pinching cost-cutting. If LASPO [the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which implemented the legal aid cuts] is rightly seen as a fundamentally damaging attack on the legal aid system – particularly in the context of private law cases in the family courts – the slow degradation of a system in which we could once take justifiable pride has been going on for at least twenty years.”
I would put it at more like thirty years. I certainly remember legal aid coming ‘under attack’ back in the 1990s, with frozen rates of pay and increasing bureaucracy making it ever harder to obtain. “The truth,” said Sir James, “though those in power will never admit it, is that there is inadequate recognition both of the vital importance of the rule of law and of the equally vital need to ensure that our justice system is properly funded and resourced.” Precisely.
And what are the results of this policy? Sir James lists many, including not enough judges to handle caseloads, pressures caused by so many unrepresented litigants, the shocking condition of the court estate, the length of time that cases take to be dealt with, the number of cancelled hearings, and the extent to which judges are expecting parties and professionals to sit well beyond normal court hours.
So what is to be done, and what are the priorities? Sir James says that the answer is clear: we need more judges, and to press on with the court modernisation programme. Despite the problems that have beset the programme (see, for example, this post I wrote here in June last year), Sir James said that there was no ‘Plan B’ – we have no choice but to make a success of the programme.
Sir James then ended by focussing upon two aspects of the modernisation programme: improvement in and rationalisation of the court estate, and introduction of proper IT in the family courts.
As to the former, Sir James said that the latest pronouncement from HM Courts and Tribunals Service was “desperately thin on the specifics”, giving no details on proposals for rationalisation, plans for new-build courts and for the refurbishment and improvement of courts.
As to the latter, Sir James said the picture was mixed. On the one hand there was a “crying need” for proper IT in the family courts. On the other hand, the online divorce project has been a “triumphant success”. Projects for the online handling of family financial remedy claims are likewise proceeding to finality by the end of this year, and progress in relation to the online public law and private law children projects continues, though seemingly to a slower timeline.
Sir James concluded with a note of realism. He said:
“I remain upbeat and positive about the future of the Modernisation Programme, but no good is achieved by ignoring or glossing over the many difficulties we continue to face. There is a long way to go if the pessimists and naysayers are to be persuaded. Frank acknowledgment of – facing up to – ongoing failures is surely the best way forward.”