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Mr Justice Ryder’s proposals for the modernisation of family justice published

Reforms to be introduced in two phases by end of 2014

Mr Justice Ryder's report into the modernisation of Family Justice has been published. The report is available here. The report contains a series of proposals to improve the workings of family courts.
 

Mr Justice Ryder was appointed in November following the Family Justice Review, with a brief to make recommendations by the end of July after months of wide-ranging consultation. 

His recommendations have been endorsed by the Lord Chief Justice and are intended to change the culture of the family courts for the children and families themselves, for judges, lawyers, social workers, Cafcass and social workers.

The proposed reforms do not need legislation, but will be introduced in parallel to proposed changes in legislation by the Government.

Summary
The Crime and Courts Bill currently before Parliament provides for a new single family court to replace and simplify existing arrangements. The launch of that court will provide the vehicle for the family modernisation programme to be implemented [see para 6].

Phase one, to the end of 2013, will put in place the structures, leadership and management principles [9]. Good practice based on evidence and supporting materials will be published during this time [11].

Phase two, from 2013-14, will include judicial training and will prepare for the implementation of the Children and Families Bill, which is likely to deal with the Government's published desire to limit most care cases to 26 weeks [12]. To read the key features of the proposed Bill, please click here.

The Single Family Court
The aim is to have a new court with a new structure where the work of the court will be directly managed by the judiciary and where all levels of judge and magistrate will be members of the same court, ie they will sit as "Judges of the Family Court".

The court will be led by the President of the Family Division. He will be assisted by an implementation group which will project manage the modernisation programme, and by the regional network of Family Division Liaison Judges [13].

Family Court Centres will usually comprise one or more hub courts and their satellite hearing venues. Where possible, judges and magistrates will sit in the same buildings [14].

The national Family Justice Council has been retained as an independent advisory body, and has been asked to contribute advice on expert evidence, pre-proceedings in private law, and self-representing litigants [24-25].

A framework for leadership and management  
One of the keys to reducing delay is the more effective management of existing judicial resources with more continuity.  Better listing practices will improve the preparation and hearing of cases during case management [26].

The aim over time will be for public law circuit judges to sit for not less than 40 per cent of each year on public law proceedings in the Family Court and not to be away from their court centre for more than four weeks. This will provide continuity of case management for cases allocated to them [30].

Guidance on leadership and management will be issued by the President to include deployment, allocation of proceedings, case management appeals, three public law pathways (standard exceptional and urgent) and the private law pathway [35].

A framework of good practice
Improved performance to reduce delay relies on efficient deployment as well as the quality of case management decisions.

High quality case management relies on the quality of evidence provided by the two parties.  Quality does not depend on quantity [38].

The decision to remove a child from parents demands a rigorous approach to decision making. The rights arguments that are pursued  on behalf of parents will almost always have a concomitant argument on behalf of the child. This will often involve an analysis of the harm that will be caused to the child by an adjournment or delay [39].

Experts are misused and over-used.  The court must be adept at scrutinising whether the evidence is already before the court and whether further expert assessment is needed on the same issues [41].

Public law case management
There will be rule and practice direction changes relating to the use of experts, and a timetable which presumes that all but exceptional cases will be completed in 26 weeks [45].

A statement of principles of evidence to use in children proceedings will be published to explain that other than sufficient adversarial fact-finding, the judge's function in determining the welfare of the child is investigative. The principles will reinforce active case management [46].

Over the next 12 months agreements already reached with family justice agencies will be published as "expectation documents" explaining in plain language what the court will expect from each [49].

A consistent but firm approach will be developed to litigants, whether represented or not, to ensure that issues remain in focus and are addressed within the timetable set by the court [52].

Private Law
Private law proceedings range from the most complex family breakdowns, involving intractable disputes and serious safeguarding issues, to relatively modest disagreements about contact arrangements. They will all benefit from continuity of judicial oversight once allocated [56].

Most private law parties, ie parents, who seek to resolve their differences about the plans for their children will fall outside the scope of public funding in April 2013.  The judiciary must take steps to ensure that those who are entitled to family justice are provided with access to it, whether represented or not. The judiciary are not responsible for pre-proceedings processes being put into place [53].

The courts will have to deal with a volume of previously represented parents who will not have had the benefit of legal advice to identify solutions or the merits or demerits of their proposals. Before their arrival at the court door they will not have had identified to them the issues the court can address before arrival at the court door. Many will have no idea what a conventional court process entails and some will have difficulty understanding its rules [54].

A private law pathway will be published to describe what a court can and cannot do and how it does it.  In a conventional case there may be restrictions on the right of one party to cross-examine another, relying on each party having their say, then the judge identifying further issues and asking question him or herself [55].

Financial remedy cases
Many of the judges of the County Court and in the High Court Family Division and Principal Registry undertake a significant volume of financial remedy cases. These will become a major strand of the new Family Court, but specialist services in London and elsewhere will be preserved [59].

The High Court
The Family Court will not absorb the High Court, but in future High Court Judges will regularly sit in the Family Court providing leadership to interpret and apply legislation, rules, practice directions and case law in decisions that provide binding precedent [63].

The voice of the child
Although not directed at the Judiciary, the recommendations of the Family Justice Review relating to the voice of the child deserve careful consideration and are agreed. In particular an engagement with children to facilitate their understanding of the process of proceedings, ascertaining the child's wishes and offering the opportunity to be heard and explaining to every child the decision of the court [65].

Arguments for the confidentiality of proceedings are balanced by arguments for the need for a Family Court to explain and demonstrate its decision making. Proposals will be developed to require publicly available rulings on case management decisions involving the use of experts or leading to adjournments and delay.  The aspiration is that over time the majority of judgments and reasons can be handed down in an anonymous form which protects the privacy of children and adults [66].

Judicial response to the Family Justice Review
This section gives the judicial response to the recommendations of the Family Justice Review.

The report can be read here.

Based on the Executive Summary of the Report.