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The Modernisation of Family Justice: An Interview with Mr Justice Ryder

Mr Justice Ryder is interviewed by Zimran Samuel, barrister, of 9 St John Street Chambers about the modernisation of the family justice system

Mr Justice Ryder

Zimran Samuel, barrister, 9 St John Street Chambers

 

 

 

 





Mr. Justice Ryder is the Presiding Judge of the Northern Circuit and the Judge in Charge of the Modernisation of Family Justice. He was interviewed at the Royal Courts of Justice by Zimran Samuel, Barrister, 9 St John Street Chambers on 12th November 2012.

Zimran Samuel: You are of course the Judge in Charge of the Modernisation of Family Justice. This is not the type of thing that judges typically do. What has been the most difficult part of taking on this role and formulating your proposals for reform?

Mr Justice Ryder: The most difficult part has been balancing still being the Presiding Judge on the Northern Circuit, with sitting obligations, while fulfilling my role as the Judge in Charge of the Modernisation of Family Justice; I am incredibly grateful to my colleagues for helping me to do this and to the Lord Chief Justice for the time that has been provided to me.

Can I begin by asking if you have enjoyed it?

Enjoyed it?! Nobody has asked me that before. Yes in a curious way I have. I learnt some leadership and management through army courses long ago when I was just starting at the Bar. I remain very interested in it and I think that leadership and management principles can be used to very good effect, for example they can be used to enhance the independence of the judiciary and improve their own effectiveness and quality control.

By the time I had finished writing my report I had met over 5000 people, in meetings ranging from sometimes six people in a room to large lectures with hundreds of people. It was interesting as you re-meet old acquaintances and meet many new people with some wonderful ideas and yet nobody has ever bothered to speak to them before. That was, I think, one of the most enjoyable parts of it all.

You mention that you have been participating in these discussions and consulting practitioners across the country. How receptive do you think that barristers are to the need for modernisation and better management of judicial resources?

Well, I think they are very receptive and that is true whether you are talking to the specialist Bar and Solicitors' associations, the Bar Council, the Law Society, or to individuals. This is reflected in projects and groups which have been set up not by me but by these other bodies and which include detailed discussions with local authorities, social workers and Cafcass. So I think that on that level and also on a one-to-one level there is a very high level of understanding. I also think there is a new way of working in court, which is not just relevant to advocates and that is, if we are moving to a form of investigative justice, what is the role of the family lawyer in court? That I think will be the real challenge.

During the course of the FLBA seminar at the Annual Bar Council Conference, there was much discussion about some of our legal reforms and the importance of taking into account comparative analysis. In writing your report how much have you been able to take into account lessons that could be learnt from other jurisdictions?

There are two presentations relating to Australia and New Zealand which I mention in the report. I raise them because of their significance.  You simply could not avoid sitting down and thinking about them. We have looked at Commonwealth jurisdictions through Australia and New Zealand.  Over the course of this year we have also had the opportunity to look closely at a number of European jurisdictions from a child protection perspective, for example tomorrow I will be going to Brussels for discussions there.  I have had detailed discussions with US judges on their problem solving courts.

I have a longstanding interest in Guernsey so we added in their experience, and we have also spent a lot of time with Scottish judges and those in Northern Ireland. The other thing to mention is that people were very keen to talk to us. Every time a foreign delegation would come over here they were keen to sit and speak to us about the reforms and their own experiences.

Your recommendations are set to change the culture of family proceedings. How prepared do you think practitioners are for these changes?

Well, I think practitioners are already being prepared for the legal changes in both private and public law cases. When the single Family Court is set up there will be training on questions of how cases are allocated, and how appeals are heard. There will be local and national courses dealing with this.

Where I think there needs to be better cooperation between barristers, solicitors and the judiciary is in the change of culture. I think that advocates should want cases to be managed better and judges need to be able to do that.  There will also need to be skills based training for legal advisors, as well as leadership and judicial training so that judges can better manage their workloads. I think that by next July around 600 judges will have already received training on the reforms, so preparation is well under way.  I would like to go back to the training model used for the Children Act 1989 or Lord Woolf's civil justice reforms and have that same level of detailed training and engagement for all who are involved in the family justice system not just judges and magistrates.

There will be some practitioners who will firmly believe that 26 weeks to complete a care case is often just unrealistic. There will be those that are concerned that it places far too much pressure to conclude cases quickly, and in the process there is less of an emphasis on the rights of parents, particularly those with mental health problems and those with learning disabilities.

Those concerns are legitimate. Those are concerns held not just by barristers but also by the judiciary. The concerns will be met by good case management and quality evidence from the outset of proceedings but most importantly by adherence to the principle of welfare when setting the timetable for the child. There is no magic in 26 weeks. However, generally speaking, the shorter the proceedings are, the better that is for children because they are not waiting.  We can achieve shorter proceedings by better quality evidence at the beginning.

The Judiciary will be giving evidence to two Select Committees. That is the Adoption Select Committee and the Justice Select Committee on the Children and Family Bill. The evidence they will give is that the timetable should be guided by welfare. In a standard case it may be that this is achievable in 26 weeks. Where this is not in the child's interest it may take longer.

The most complex cases often take a lot of time. Now time sometimes leads to better quality of evidence but not always. What is needed is a sea-change so that we become rigorous in identifying the needs of the child and what the timetable should be; the focus needs to be on the quality of the evidence rather than quantity.

You place great emphasis in your report on the importance of judges as effective case managers. Now some judges may be better managers of their lists and their workload than others. Under the new regime, what can be done to improve the situation where for example a judge takes many months to deliver a judgment?

I think practitioners need to be reassured that judges are accountable for delay, particularly a delayed judgment. Much of the training will focus on better management which will be new to many of them. We are training every leadership judge to ask important questions about a judge's workload and delay.

If I may, I want to return to something you touched on earlier and that is the question of how we improve the quality of evidence rather than the quantity.  It is already very difficult in most cases to persuade a court that many experts should be involved in proceedings. However if we restrict the use of experts even further, is there not a danger that the quality of the investigative process and the adversarial process generally will be compromised?

I don't want to lose our adversarial protections and the skill of the case manager shouldn't be to limit the use of experts arbitrarily. What is needed is that we identify much more clearly than we do at the moment what the issues are in a case and whether an expert is really needed. We don't for example always need to have a report to tell us what the common place research is in a certain area. When an expert is necessary, then questions can still be asked in the normal adversarial way. There is a strong case for using two types of expert. Firstly, the independent social worker who can provide an opinion on a discrete aspect of a case which nobody else has done and in a way that can really add value to a case.  The other is an overview of different disciplines in the more complex case.

I don't see the use of experts disappearing but I do suggest that they should be used in a much better, targeted way.

Your proposals are obviously judicial proposals for modernisation and are separate from the government's plan for cuts. However surely your work would have inevitably had the government's agenda in mind and had a degree of influence?

Well, I certainly had them in mind and we have brought to bear as much influence as we can.  The Judiciary will have to apply the LASPO changes despite all the warnings about the potential effects of the legal aid restrictions.    We are faced with the LASPO Act from the 1st April 2013; it is the elephant in the room. I have got to deal with that and at the end of this year I will put forward detailed proposals for how we are going to deal with private law cases. The approach will have to be very different in that it will have to be more inquisitive rather than adversarial because by and large there won't be advocates there because most people won't have the finances to instruct lawyers. Judges will have to play a greater role in levelling the playing field and focusing the parties on what is relevant.

The other side of this will be funding restrictions on experts. By the time we get to the end of January, there will be a partially re-written Part 25 of the Rules, together with new practice directions to go in tandem dealing with a new test of 'necessity'. What the Legal Services Commission have suggested is that they are willing to consider changing their own guidance and their own funding code because if a judge believes that an expert is necessary, that does not sit well with the Legal Services Commission saying that they will not fund the expert. Now it is sadly not as simple as that but there is a genuine will to change the process for the better.

Will there be literature for the general public who, as you say, often won't have the benefit of a lawyer explaining how the new face of family justice will operate?

Yes there will. Some of it has been written and the Family Justice Council will be publishing some and has also commissioned other groups to assist with writing some of the material. Various other groups such as Resolution and the Law Society have written material for their own members which I think is very good.  These materials are likely to be very extensive and available in a number of different media.

The Crime and Courts Bill currently before Parliament provides for a new court for family cases to replace and simplify existing arrangements. Can you explain for readers how the High Court will fit into the regime of the new Family Court?

The High Court will still be there for family law cases but High Court Judges will also be able to sit as Judges of the Family Court. We wanted to achieve two potentially competing imperatives. Firstly, we wanted to maintain the unique supervisory and administrative jurisdiction of the High Court.  We want family judges who can still sit on judicial reviews across the whole spectrum of welfare cases or indeed out of our specialism and in the administrative court generally. We wanted to maintain the supervisory role of the High Court; the FDLJ's are a classic example.   There are usually one or two Presiding Judges in the Family Division and we didn't want to lose that and the ability for someone to advance a case in the High Court which internationally or domestically needs to be seen to be advanced in the High Court. We also did not want to lose the specialist centre of excellence which is London and we didn't want to lose the ability to do inherent jurisdiction work anywhere in the England and Wales.  The competing imperative is to have a unified court with identical principles and the support and influence of the High Court Judges sitting as members of that court.

Do you think it's about time that Judges in family were ticketed (as in crime), for example so that only certain named judges would do complex non-accidental injury / brain injury cases?

We already ticket for private law and public law with adoption.  In addition, the most complex cases are dealt with by section 9 judges.  I do not at the moment see a need for additional ticketing.

Finally, if I may, I want to move away from the proposals in your report and ask you about the issue of forced marriages which I know you have a strong interest in. The current Government has proposed bringing in a criminal offence against forced marriages to sit alongside the Forced Marriage Act 2007. In your opinion is this likely to deter the practice of forced marriages, or is there a danger that it will drive the practice even further underground?

One always has to be wary of unintended consequences.  The enforcement of harassment and domestic violence injunctions is a case in point.  Enforcement did not become more effective despite the ease of the criminal sanction, it tended to put the victim off.  On balance, however, this is so serious a matter and it is probably good for there to be a discrete criminal offence provided that civil enforcement can be concurrently available.

12th November 2012
Royal Courts of Justice