Professional groups welcome the key proposals of the Family Justice Review
Concerns are voiced about the practicability of reforms in the light of legal aid cuts
The Bar Council, Law Society, Family Law Bar Association and Resolution have all welcomed the main proposals contained in the final report of the Family Justice Review, chaired by David Norgrove. However, all of these bodies have also questioned whether the vision set out in the Review is achievable if the Legal Aid, Sentencing and Punishment of Offenders Bill enters the statute book in its current form. The Bill has recently completed its passage through the House of Commons.
By contrast, Families Need Fathers considered the proposed reforms inadequate to address 'the deep-seated problems at the heart of the family justice system'.
The responses are set out in detail below.
Bar Council and the Family Law Bar Association
The Bar Council and the Family Law Bar Association (FLBA) have welcomed the key proposals of the Family Justice Review, contained in the final report published today. They have, however, voiced concerns about its ambitious vision of the future of family justice in the face of drastic proposed cuts to family legal aid.
The Bar Council and FLBA have pointed out that the report is published as the Legal Aid, Sentencing and Punishment of Offenders Bill completes its passage through the House of Commons almost completely intact, moving on to the Lords complete with provisions to remove private family law, almost in its entirety, from the scope of legal aid.
Stephen Cobb QC, Chairman of the FLBA, said:
"The final report of the Family Justice Review rightly places children and families at the centre of its ambitious proposals for reform. It is a lengthy and detailed document, to which the FLBA will respond more fully in due course. We are pleased with many of its recommendations which, if implemented, should reduce the scandalous delays which currently exist in the family justice system.
"The FLBA supports the creation of a more effective family justice service, and supports proposals for family judges to have greater leadership and management responsibility for their courts. Judicial continuity in family cases, for which the FLBA lobbied hard during this review, is to be a key feature of new case management culture.
"If we take one key message from these proposals, it is the proposed eradication of delay in the resolution of disputes concerning children. In this respect, the Family Justice Review is right to be concerned by the inevitable rise in the number of unrepresented litigants who will populate the family courts if the legal aid proposals are implemented as drafted.
"While the Review Panel points to various strategies to assist parties in resolving disputes away from the courts, or to assist them while unrepresented in the courts, the panel rightly reflects that these initiatives 'are by no means a full answer' to what we believe will be a very serious problem.
"The Review rightly recognises the vital role that family barristers and solicitors play in the speedy resolution of cases. This will, however, count for little if the Government pursues these cuts. In that event, the pool of talented family lawyers will be significantly diminished at the expense of children, families and the family justice system."
On 16 November, Stephen Cobb QC will join David Norgrove on the panel of the second 'Bar Debate', the topic of which is 'Broken Britain, broken families: what next?', where the Review's recommendations and the legal aid cuts will be discussed in more detail.
Resolution likewise considers that publication of the final report by the Family Justice Review Panel presents a major opportunity for progressive reform of family law – but progress could be seriously undermined by the Government's controversial plans to cut family legal aid.
Resolution said that while the detail of the report needed careful scrutiny, the overall direction of the panel's recommendations could mean that family law processes become more streamlined and easier for parents and children alike.
David Allison, Chair of Resolution, commented:
"As an association committed to the constructive resolution of family problems, we welcome the Family Justice Review as a springboard for progressive reform that makes family law fit for purpose in the 21st century.
"Long and complicated legal processes are emotionally and financially draining for parents and distressing for children. Any moves to make family law less combative, such as the report's emphasis on alternative dispute resolution methods are to be encouraged."
Nevertheless, Resolution believes that the publication of the final report the day after the Legal Aid, Sentencing and Punishment of Offenders Bill leaves the House of Commons demonstrates the fragmented nature of the Government's approach to family law. The negative effect of the legal aid changes – not least the inevitable rise of the number of people representing themselves in court (litigants in person) – is an area of particular concern raised in the report.
David Allison said:
"The Family Law Review is a watershed moment for family law, something that has long been in need of reform. But at the same time, the Legal Aid, Sentencing and Punishment of Offenders Bill will remove legal aid provision for the vast majority of family law cases, meaning that some of the most vulnerable families, and their children, will struggle to access the professional legal advice and support they need, even if the processes are simplified."
Meanwhile, Resolution stated that findings from a survey by Citizens Advice and Resolution further highlighted the pressing need for the Government to amend the Bill.
The Law Society has said, in response to the review of family justice which it describes as the most comprehensive and important since 1989, that radical and sustained change to the family justice system could not come soon enough.
Law Society Chief Executive Desmond Hudson said:
"Children are at the heart of family justice and their welfare should be paramount. Today's delays in public law cases amount to a national disgrace - many children in particular are being failed by the system. The report's recommendations will need study and action by all parts of the system - judges, lawyers, social workers, guardians and by the Government too, because many of these changes will need resourcing. Even in this straightened times, the Government has to find the money.
"Legal aid cuts will lead to more people going to court unrepresented, and family courts slowing down even further. More people will have completely unrealistic expectations of the process because they haven't had a family solicitor's advice.
"The report's overall aims should attract wide ranging support. We share its recognition of the need for radical and lasting change within family justice.
"Despite the huge commitment shown by many of those working in family justice, the system is failing. Cases are taking too long, causing harm to children and families."
Association of Lawyers for Children
The ALC proposes to issue a considered response to the final report later this month. The Chair of the Review Panel, David Norgrove, has agreed to speak at its annual conference in Manchester on 11th November 2011.
In the meantime the ALC has been pleased to note that the Review has again asserted the need to place children at the heart of whatever changes are to be made, and that the tandem model of a child's representation by a solicitor and children's guardian has been confirmed as the best way to ensure that a child's voice is properly heard in proceedings involving state intervention. The Association is also glad to see that a number of recommendations which it proposed, in order to reduce delay, have been accepted, e.g. an end to parallel scrutiny by an adoption panel of whether adoption is in a child's best interests, where a plan of adoption is already being considered by a court.
Cafcass has welcomed the panel's proposals for a more child-focused and faster family justice system.
Anthony Douglas, Chief Executive, said,
"We welcome the panel's emphasis on the needs of vulnerable children in these cases and on the focus it has given to tackling the corrosive effect of delay on their lives. In particular, we welcome proposals for a time limit in public law cases and the development of a child's arrangement order in private law cases, so that in both types of case the child's deadline takes precedence over bureaucratic processes. Change has already begun but, as the panel recognises, it must accelerate.
"With significant numbers of new children needing professionals' help every day our top priority is to maintain the improvements we've made in our work with children and ensure they get the best possible service in the timeframes which they need. Care application figures for October have already topped 800, making it the highest October we've ever recorded and highlighting the urgent need for all of us in the system to work together more effectively and more rapidly on behalf of children. We support the panel's calls for the development of a more responsive and child-focused system and will play our full part in its development.
"We are already working on a number of projects that any new family justice system would be proud of. These include funding around 15,000 parents onto parenting programmes so far this year to help them resolve their disputes out of court, and the establishment of a Police National Computer unit at our National Business Centre to ensure that we receive vital information on the safety and welfare of children more quickly than ever before. In the West Midlands, we are working with Coventry and Warwickshire local authorities on a project to try to divert some care applications from court, and to ensure that in those cases which do have to go to court, there is less delay as a result of the detailed preparation work between Cafcass Guardians and local authority social workers.
"We are also joining forces with the local judiciary and Suffolk County Council on a project with parents who have lost their children through care proceedings to help them make the changes needed to prevent any of their future children being taken into care. Whilst the panel is clear that there is no magic solution to the pressure we are all under, each of these initiatives shows that the system can change positively through the stronger working together model it is proposing and by ensuring our combined resources are used to help children in the most effective way."
Nagalro, the professional association for court guardians and independent social workers, has welcomed the commitment to tackling the damaging delays which are endemic within the system.
In particular it welcomes:
- The support for the 'tandem model' of independent legal and social work representation for children within the FJR report although we strongly oppose in-house legal representation for children.
- The decision to recommend against a legal presumption around shared parenting.
- The FJR recommendation to incorporate the UNCRC into domestic legislation which is a key requisite to hearing the voice of the child in the proceedings.
- The commitment to interdisciplinary training and induction for family court professionals.
- The recommendation to consider amending s34 CA1989 to include an assumption of reasonable contact between siblings.
- The Review's endorsement of the need for more research into the contribution of Independent Social Work expert witnesses to the work of the family courts.
However, the association warns that the recommendations risk dismantling constitutional protective mechanisms for children by substantially reducing the level of judicial oversight of local authority decision making, leaving children more vulnerable to wrong decisions being made on the basis of insufficient
The association also notes that the report is silent about Cafcass and ducks the key question of whether Cafcass's new 'proportionate' operating model meets the statutory criteria necessary to ensure that children receive the service and protection they need. Services to children, it says, have already been substantially pruned back in both public and private law. It is of particular concern that Cafcass' key performance indicators conceal the fact that many children are not being seen.
Association of Directors of Children's Services
Responding to the release of the report, Matt Dunkley, President of the Association of Directors of Children's Services, said:
"ADCS welcomes this report and believes its full implementation will make a major difference to the lives of children and families who find themselves in the family justice system. The critique is fair, including of local authority practice, and we also believe the recommendations are the right ones. We need to give such a complex report careful consideration but for our part we are determined to assist fully with implementation.
"We have heard much recently about the delays faced by children requiring adoption and this report provides a clear and thorough explanation of some of the reasons for delays in making these decisions. Many of the proposed changes require primary legislation and we urge government to continue its commitment to improving services for children in care by bringing this legislation into being as soon as possible.
"In order to reduce delays it is necessary that all parts of the Family Justice System have a clear and consistent understanding of their respective roles and responsibilities. The system must make the best use of the different expertise available to it in a culture of trust and mutual respect ? that means judges deciding, based on principles of law and standards of evidence, who should have responsibility for a child's care and social workers, who know the individual child and have expertise in child development, deciding the more detailed arrangements for a child's care.
"The respective roles of local authority social workers, the court appointed guardian and any expert witness must be clarified to prevent duplicated or contradictory assessments from introducing further delay. We acknowledge that there is significant work to do to increase the judiciary's trust in local authority social work and vice versa and are committed to working with leaders of the judiciary locally and nationally to find ways of increasing our mutual understanding and improved partnership working. We agree that this must include improved training and professional development for all those involved in making the system work, and should build on the ongoing work of the Social Work Reform Board with local authorities to improve the quality of social work training, supervision and management. A change in culture does not require legislation and can and must begin immediately ? it is the duty of all those involved in the system to make it work in the interests of children and young people."
British Association of Adoption and Fostering
The British Association of Adoption and Fostering (BAAF) has said that the publication of the Norgrove Review in National Adoption Week is a timely reminder that the deficiencies of the adoption system are not restricted to the actions of local authorities and adoption agencies. The courts play a major role in the delays experienced by children in moving on from their birth families to alternative permanent placements. The length of time taken to complete care proceedings has increased since the Review started work and now stands at an average of over a year. One thing on which there is no dissenting voice is that this is an unacceptable state of affairs.
With regard to the headline recommendation that care proceedings should be completed within six months, BAAF said that robust case management by better trained and experienced judges of a single family court, consistently implementing and enforcing a revised Public Law Outline is one way in which the courts will be reducing delay. Experts will only be instructed when absolutely necessary, and those who are instructed will be monitored for quality and how quickly they deliver their reports. Social workers will be better trained in assessment and court skills in line with the Munro report on social work.
All of these are positive and sensible suggestions, BAAF believes, but they do rely to some extent on another area of difficulty identified in the Review, that of trust. Courts, social workers and Guardians all have a duty to put the welfare of the child first, but each part of the system appears not to trust the others to work together in the interests of the child. Changing this is not something that can be achieved overnight. It is also important to note that trust has to be achieved in the context of making fundamental life changing decisions about the future care of children where there is disagreement and conflict underpinned by a hope that things might change for the better. Systems that work best when they are based on trust are also systems that are influenced by the fear of making the wrong decision and being held to account for this.
BAAF notes that the report identifies that "there is no further money to be had", so all the recommendations rely on change within the existing budgets and on savings that the changes will hopefully make. There is much to be welcomed in this report, and some areas where the potential savings in time risk reducing the protection of the child's interests, but it is a call for a major change in the mindset of all involved in the system to deliver significant and dramatic changes.
BAAF believes that if these recommendations are accepted and there is a real will to engage in proper reform rather than headline grabbing 'quick fixes', this review could be the start of a real improvement in the experience of children caught up in the care and adoption system.
The Association hopes that the Government will respond quickly to this report and that it will issue a clear timetable for the introduction of these much-needed reforms.
British Association of Social Workers
BASW too has welcomed the Family Justice Review but warns against budget-driven policy.
The Association has praised the 'many positive elements' of the Family Justice Review final report whilst also warning against aspects which it describes as 'over cautious' ' tokenistic' and ' budget-driven'.
Commenting on the report, BASW chief executive Hilton Dawson said:
"There are elements in the report that we welcome, but overall it takes a somewhat cautious approach. We would hope that the development of a unified family justice service will make the system easier to navigate for both children and families. We also support calls for a robust legal framework, designed to work in tandem with the reforms to child protection practice recommended by Professor Eileen Munro and with the work of the Social Work Reform Board."
Striking several notes of caution, Nushra Mansuri, BASW professional officer, said:
"Allowing budgetary issues to dictate what happens in cases involving vulnerable children is risky and unacceptable. We oppose tokenistic target setting in the current climate of austerity and cuts. It is just not realistic, and will only ever be feasible when social workers are given the right level of resources.
"Coupled with planned cuts to legal aid, this will demoralise already beleaguered front line social workers who are toiling around the clock to deal with increased caseloads. We are also concerned that a potential over reliance on mediation in private law could lead to children in such cases getting a poorer service.
"Sadly, this appears to be less about creating a child-centered system, and more to do with cost cutting and devaluing professional practice."
National Family Mediation."
National Family Mediation
National Family Mediation has welcomed the enhanced role of mediation in the Family Justice Review.
Jane Robey, CEO of National Family Mediation, said:
"We welcome the Family Justice Review and the enhanced role for mediators. Our mediators receive the best training in the country and are experts in their field. We believe mediation provides the best outcomes for families and children and gives people the chance to make their own decisions about their future if they choose to mediate."
Bob Reitemeier, Chief Executive of The Children's Society, said:
"A radical overhaul of the family justice system is long overdue. For too long, it has functioned as an incoherent, disjointed system that does not meet the best interests of the child. Delay in decision making, a lack of understanding of child development and a culture that often works against children rather than for children has led to poor outcomes. The government should not delay in moving to reform the system so that in every case the child's concerns are at the heart of the decision making process."
Families Need Fathers
By contrast to most responses, Families Need Fathers consider that the recommendations made in the final report are inadequate to address the deep-seated problems at the heart of the family justice system, and are unlikely to improve outcomes for children or their families.
It believes that the report fails to provide for children maintaining meaningful relationships with both parents and their wider family following family breakdown.
Ken Sanderson, CEO of Families Need Fathers, commented:
"Sadly, I believe that the report's focus on 'making parental responsibility work' is far too optimistic when it comes to improving long-term outcomes for children and their families. The problem is not that parents are inadequately aware of what parental responsibility means; the crux of the matter is that it is all too easy for one parent to simply ignore this and omit the other from their child's life, with a justice system which is unable and unwilling to take firm action to prevent this. The absence of any firm recommendations to strengthen children's rights to a meaningful relationship with both parents, and their wider family, represents a dereliction of duty on behalf of the review, and we implore the government to reconsider this before proposing legislation."
In the view of FNF, the panel failed to appreciate that shared parenting and the right to a meaningful relationship with both parents is not a question of time, but of involvement in the child's physical, educational and emotional development.
Ken Sanderson commented:
"The reduction of shared parenting or a meaningful relationship to time alone in the report is a complete misunderstanding of the issues. Shared parenting is not about an equal share of time; it is about ensuring the full involvement of both parents in a child's life, with both parents having an equal say in areas such as education and health, as well as routine and leisure time. The adoption of these proposals would continue to deny thousands of children the full involvement of two loving parents following family breakdown, and to do so would be a betrayal of yet another generation of children in this country in family law.
"The UN Convention on the Rights of the Child provides children with the right to a meaningful relationship with both parents following family breakdown. This is not a challenge to child welfare, but an enhancement of it to ensure that children are fully supported financially and emotionally. The denial of this by the Review is an opportunity lost, and we urge the Government to properly address this issue before proposing future legislation."