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Norgrove – The Response Considered

Sally Gore, barrister, of 14 Gray's Inn Square analyses the Government's response to the Family Justice Review in the context of current family law practice

Sally Gore, barrister, 14 Gray's Inn Square

Sally Gore, Barrister, 14 Gray's Inn Square

Last week, the Government published its long-awaited response to David Norgrove's Family Justice Review.  In The Government Response to the Family Justice Review: a system with children and families at its heart,1 many of the key recommendations of the Review have been accepted and the Government has expressed a commitment to implement the changes as soon as possible.  The Government has articulated a commitment to strengthen parenting, reduce the time it takes cases to progress through the courts, and simplify the family justice system.

One of the overarching changes now being proposed is that there should be a single family court across England and Wales with one point of entry.  The Government has also reiterated its aspiration, not for the first time, to achieve judicial continuity in family cases.  Although it recognises that family cases should be heard by family specialists2, it suggests that judicial continuity "will need to be balanced by the need to retain the business flexibility that is inherent in the appointment of a judge that is able to sit in more than one jurisdiction".3  Consequently, the aims of judicial continuity and reducing the time it takes for a family case to progress through the courts will not necessarily be met by ensuring that judges hearing family cases are drawn from specialist family lawyers.

Overall, the Government's response adopts many of the goals identified in the Family Justice Review.  It is also peppered with ill-thought out proposals to achieve particular aims, such as reducing delay in care cases when what is clearly needed is a commitment to provide greater resources to tackle the causes of the identified problems.

Divorce and Financial Remedies
Amongst the specific proposals, the Government has adopted the recommendation that undefended divorces should in the future be dealt with administratively rather than judicially.  This would appear to be a common-sense way to free up judicial time, provided that the change is effected in a planned way and the task is undertaken by properly trained staff.

It is also proposed that the process of divorce may be begun online, using the new 'information hub'.  Again, this is potentially a significant change and one that, if successful, should streamline the process for those who have access to technology, as well as hopefully freeing up time and resources.

If a divorcing couple are disputing money or property, they will also be expected to access the online hub and they will be required to be assessed for mediation before they apply to the court.

The Law Commission is to consider the definition of 'needs' in financial remedy cases and also to look at how pre-acquired, gifted and inherited property should be regarded when considering the financial implications of a divorce.  Further public consultation is due on these matters.

Children - Public Law
Following the recommendation of the Review, the Government has proposed legislation to impose a statutory six-month time limit for the completion of care cases (the current average time for a care case from start to finish is 55 weeks4).  Any lawyer who has ever represented a parent or a child in public law proceedings is likely to be alarmed by this. 

Whilst the current delays are unacceptable, and clearly not in the best interests of the children at the heart of these cases, better outcomes for children are not going to be achieved solely by legislation imposing an arbitrary time limit.

The reality of these cases is that many months are lost in court proceedings due to a lack of court time, due to inefficiency and poor planning at the outset of proceedings – the failure of local authorities to set up assessments in parallel with initiating proceedings or dealing with immediate and pressing issues of placement, and due a lack of local authority in-house resources building in further delay to assessments.  The Government has recognised that:

The quality and timeliness of social care assessments put to the courts has a crucial bearing on how quickly cases progress. Poor or late assessments can lead to delayed or re-scheduled hearings and can result in courts commissioning evidence-gathering elsewhere.5

They make a commitment to better training for social workers in court preparation and presentation skills.  What they do not promise is more resources to address the problem of overstretched social workers whose workloads are already too high and who are ill-equipped to meet the demands they currently face, let alone raise their game to undertake "more high quality work with children and families" in order to "ensure more credible evidence is put before the Courts".6

The proposed statutory guillotine on completing care cases is simply a distraction from the need for resources to be channelled to address the causes of delay.  Included in this list should be the difficulties faced by CAFCASS.  Children's Guardians, constrained as they now are by 'proportionate working' often find themselves fire-fighting, unable to have any significant involvement in the case in-between court proceedings and consequently lacking an in-depth understanding of the case which in turn leaves them less able to provide effective advice to the court.

Ann Haigh, Chair of Nalagro, the professional association for social work practitioners, has observed:

"A six month limit is simply not workable without an increase in resources at the front line to cope with demand.  A rigid timescale will work against the interests of justice and children's rights.  Social workers and children's guardians will be criticised when unrealistic deadlines are not met, but it is children who will suffer when wrong decisions are made on insufficient grounds".

And what of the need to shorten the court timetable by curtailing 'unnecessary' assessments?  The Government has proposed further statutory reform to require courts to consider whether expert evidence is necessary.  It might be said that this has always been required of judges.  The objectives of not subjecting children to unnecessary assessment and reducing delay in their proceedings are not new.  As long ago as 1997, the House of Lords in Re C (Interim Care Order: Residential Assessment) confirmed that the purpose of s.38(6), Children Act 1989 is to empower the courts to order or prohibit an assessment involving the child.  Moreover, the Court of Appeal in S (A Child) [2011] EWCA Civ. 812 reaffirmed that parents should not expect to be granted additional assessments on the basis that they should be given every reasonable opportunity to put forward a positive case.  The judge hearing the individual case is surely best placed to decide whether an assessment is necessary in order to provide the court with the best possible evidence, as opposed to causing an unnecessary delay and giving parents too much latitude. 

To most of us practising in this area, the perception that the family courts are sanctioning unnecessary assessments is ill-founded.  Even if that were the case, perhaps further legislation is not the answer.  More worryingly, what will be the impact on children and families if assessments that are necessary are refused in the interests of adhering to a six-month timetable?

This time limit can be extended by the judge in "exceptional cases where this is necessary in the interests of the child and the reasons have been clearly set out".7   Perhaps the best case scenario is that this get-out clause will be the norm rather than the exception.  The Government has at least rejected the suggestion of the Review that any extension of the time limit should be authorised by a senior judge.

One of the most pertinent responses to the proposals published in the last week is that of the Law Society, which points out that the closure of court facilities and public funding cuts leading to a reduction in the number of firms offering representation in this field will all add to delay in any case.  To impose a six-month time limit now will create a pressure cooker and place the system at risk of imploding.

A better strategy for reducing delay is the proposed removal of the requirement that local authority adoption panels must consider the suitability of a child for adoption when the case is before the court.  In the future, it is envisaged that judicial scrutiny of this plan will be enough.  Whilst this proposal makes sense, the removal of this additional safety net also makes it all the more important that the courts are not deprived of relevant evidence from a necessary assessment.

Yet again, the recommendation that court fees for issuing care proceedings should be abolished has been rejected.  The risk will therefore remain that cash-strapped local authorities will divert precious resources away from costly court proceedings.  However, at present it must be acknowledged that there is scant evidence that the court fee is currently deterring local authorities, particularly given the recent reports from CAFCASS about the record numbers of new care cases coming to court.

The Government proposes to limit the need for judges to scrutinise every detail of care plans.  Scrutiny of the detail is to be left to local authorities.  In the future, the courts will be expected to focus only on "the core or essential components when making care orders".  This proposal has caused further alarm for Nalagro, whose press release reads:

"Court scrutiny of care plans is essential to ensure the local authority assessment and planning is sound.  Vulnerable children will suffer miscarriages of justice if their cases receive only a cursory glance.  The government shows a touching faith in local authorities to be all things to all children when evidence shows their performance is extremely variable.  The interests of children are often at odds with the financial interests of local authorities…"

However, the Government has conceded that if "an issue of detail is critical to deciding who should care for the child, the courts should also continue to be able to fully consider and debate this".8   In reality, the elements of the care plan that will be subjected to judicial scrutiny are probably not going to be vastly different from those elements currently considered by the courts.
Finally, the Government plans to run another pilot of multi-disciplinary expert witness teams.  However, it is not yet proposing a further roll-out of the Family Drug and Alcohol Court, notwithstanding that this has proven to be a largely successful model of a multi-disciplinary expert team.

Children - Private Law
Shared Parenting
The Government has reiterated that in a private law dispute, the child's welfare should remain paramount and its commitment to the concept of shared parenting should not mean an equal division of the child's time between both parents.  However, it is in respect of its proposals relating to private child law that the Government's response departs most significantly from the recommendations of the Review.

The Government has rejected the recommendation that there should not be a statutory presumption of shared parenting.  The risk identified by the FJR was that any such statutory presumption would lead to a public perception that there is a statutory right to a 50/50 split of the child's time.  This recommendation had generated considerable media attention after the Review was published, and had in particular sparked anger from father's rights groups. 

It is therefore easy to see that this departure from the recommendations is an attempt to appease these groups and their supporters.  However, there is no evidence to support claims that the current system is biased against fathers.  The experience of many of us is that the courts do their utmost to find ways, often by quite creative or long-winded routes, for fathers to have meaningful contact with their children.  This is often the reason why these cases take so long to progress through the family courts.

Added to this, is a lack of clarity as to what is actually being proposed.  The response states that  "the changes will make it clear that the court should consider an ongoing relationship with both parents as something that in most cases will contribute to the child's welfare, and should look at the question through this lens, of what is best for the child – rather than as a 'right' for the parents".9

Few could argue with this.  Indeed, it appears to reflect the approach in the vast majority of such cases now.  However, the Government goes on in the next paragraph to refer to a 'presumption of shared parenting'

Leaving aside the likely change in statutory language, this may not in practice mean anything very different from what the courts strive to achieve now, that is, meaningful time with the non-residential parent as long as this is consistent with the child's welfare, with no presumption that this implies an equal division of time between both parents.  Particularly given the proposed removal from our legal vocabulary of terms such as 'residence' and 'contact', is 'shared parenting' going to mean anything different in terms of the substantive approach taken by the courts?

The danger centres around public perception, as the Review identified from the Australian experience.  Will a statutory presumption of 'shared parenting' lead to an expectation that the child's time should be divided equally?  Perhaps an analogy may be drawn with the concept of a shared residence order.  Whilst parties are often surprised to learn that this does not mean a child spending equal time with both parents, in practice, the availability of such orders has not caused significant difficulties and is often a solution in cases in which parents are locked in the idea of 'winning'.

The risk is perhaps that the new statutory language will still lead to a shift in emphasis away from children's welfare in favour of parents' rights.  Given the Government's reinforced commitment to mediation, will the potential confusion arising from a concept of 'shared parenting' undermine attempts to mediate?  It is vital, moreover, that any legislative reform does not lose sight of the fact that this proposal applies to cases in which there are no welfare concerns.  Of course it remains to be seen what impact the proposed changes will have on cases where there are significant welfare concerns.

A New Approach to Dispute Resolution
In their joint foreword, the Secretaries of State for Justice and for Education underline the need for "greater encouragement of early, consensual parental plans which can survive relationship breakdown".  This commitment is not new, striking, or something that many people would argue with.  The difficulty, of course, is how in practice this aim might be achieved.

As anticipated, the Government has pledged a further £10 million per annum (giving a total of £25 million p.a.) to pay for publicly funded family mediation, with the aim of diverting cases away from the family courts.  There will be statutory reform to make attendance at a MIAM compulsory to see whether a case is suitable for mediation.  There is also to be greater emphasis on Dispute Resolution Services (DRS – formerly ADR).  The expressed aim is to assist separating couples to reach lasting agreements more quickly, and if possible without going to court.

Parents will be encouraged to enter Parenting Agreements, which the Government believes will help to ensure better recognition of the joint role of both parents. 

There is to be online support and a telephone helpline for separating parents, although it is unclear whether in practice this will be enough, particularly for those who do not have internet access or whose needs require a more nuanced, personal explanation.

Of course, the vast majority of separating parents – over 90% of couples - settle their children's arrangements without going to court in any case.  Those cases that do reach the court are by definition the most acrimonious, or cases with additional difficulties such as domestic violence, mental health issues or drug and alcohol misuse.  It therefore remains to be seen how successful mediation will be in those cases at diverting disputes away from the family courts.

Tied to this is of course the proposal to remove public funding from large tranches of private law cases.  Nicholas Cusworth QC, chair of the FLBA, commented:

"Particularly given the likely increase in the numbers of litigants in person anticipated when the LASPO Bill becomes law, there may be very little reduction (if any) in the numbers of private law cases requiring court intervention."

 The danger is that, with an increase in the numbers of litigants in person, who have little understanding of the process and who are without advice as to the likely or realistic outcome, court proceedings will remain the only option for many.

In the spirit of a more consensual approach, the Government proposes to abolish the concepts of residence and contact in favour of a 'Parenting Arrangements Order'.  This is a laudable aim – the intention is to remove the idea that one parent wins and the other loses and becomes the secondary parent.  However, the child and family will still know who the child 'lives' with, something that is surely important for the child.  The linguistic change may therefore not mean much more than mere semantics in all but the most bitterly fought-out cases.  The Government has accepted that prohibited steps orders and specific issue orders should remain available.

It is also worth bearing in mind that many of the media reports surrounding the publication of the proposals continued to make reference to the pre-Children Act concepts of 'custody' and 'access'.  Over twenty years have passed since these concepts were abolished.  We may therefore question what impact the new terminology will have on public perception.

Grandparents' Cases
Grandparents will still be required to seek leave to make an application under s.8.  This is contrary to the Government's 2010 manifesto pledge.  It is recognised that very few grandparents are ultimately refused contact with their grandchild.  This being the case, it is unclear why this additional hurdle must remain in place when the justification put forward by the Review and adopted by the Government is supposedly to weed out vexatious applications.  It is understandable that many grandparents' organisations have been angered that the vast majority of grandparents who seek contact with children that is ultimately likely to be regarded as being in the child's best interests should continue to experience this additional hurdle in their applications.

The Government has recognised the need to restore public confidence in the family courts.  The extent to which some of its recommendations in relation to private law arrangements for children will be of practical benefit, as opposed to a headline-grabbing PR exercise remains to be seen.

Of course it is always difficult to predict the future.  Some of these proposals may yet not come to fruition.  What is clear is that the family justice system is currently facing its greatest overhaul in over two decades.


Sally Gore is the author of  The Children Act 1989: Local Authority Support for Children and Families.

[1] Ministry of Justice / Department for Education, February 2012.
[2] The Government Response to the Family Justice Review, p. 13.
[3] The Government Response to the Family Justice Review, p. 43.
[4] The Government Response to the Family Justice Review, p.9.  Figures taken from third quarter of 2011, Court Statistics Quarterly, January 2012. 
[5] The Government Response to the Family Justice Review, p.14.
[6] The Government Response to the Family Justice Review, p.15.
[7] The Government Response to the Family Justice Review, p.16.
[8] The Government Response to the Family Justice Review, p.52.
[9] The Government Response to the Family Justice Review, p.19.