Ryder report vows "consistent but firm" approach in public law children cases

A “consistent but firm” approach will be developed to litigants involved in public law children proceedings to ensure that issues remain in focus and are addressed within the timetable set by the court, Mr Justice Ryder has said.

The judge in charge of modernisation of the family justice system said this approach would apply whether those litigants were represented or not.

In his report, the judge said that there would be rule and practice direction changes relating to the use of experts, and a timetable which presumes that all but exceptional public law cases will be completed in 26 weeks.

Mr Justice Ryder also announced that the following key documents would be published in due course:

  • A statement of principles of evidence to use in children proceedings. This will 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”.
  • Agreements – already reached with family justice agencies – that will serve as “expectation documents”, explaining in plain language what the court will expect from each.

The report revealed that the aim over time will be for public law circuit judges to sit for not less than 40% 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,” it said.

The judge’s recommendations on public law case management are part of a wider package of proposals on family justice that have received the endorsement of the Lord Chief Justice.

These proposals include managing cases closely, identifying the key issues and ensuring timetables are followed. There will be a single family court unifying the various courts from Magistrates upwards and led by the President of the Family Division.

The part played by experts will be examined more carefully, with the report claiming that they were “misused and over-used”.

The reforms do not require legislation, but will be introduced in parallel to changes in legislation being brought in by the Government.

The Crime and Courts Bill currently before Parliament, for example, provides for the new single family court to replace existing arrangements.

The modernisation programme will be divided into two phases. The first, running until the end of 2013, is to put in place structures, leadership and management principles. The report said good practice based on evidence and supporting materials would be published during this time.

The second phase, from 2013-14, will include judicial training and prepare for implementation of the Children and Families Bill. This legislation is expected to introduce the Government’s stated desire to limit most care cases to 26 weeks.

Writing in the introduction to his report, Mr Justice Ryder said: “The judicial family justice modernisation programme reflects a consensus for change among judges and professionals.”

Debbie Jones, President of the Association of Directors of Children’s Services, said: “The family courts are a vital part of the system for keeping children safe and in ensuring decisions are taken in a timely manner. Directors of Children’s Services will warmly welcome the spirit in which these proposals are presented, and we applaud Mr Justice Ryder for his tenacity in working through the detail of the Family Justice Review and bringing forward these robust technical proposals for the judiciary to take forward. The changes to structure and guidance are important pieces of the puzzle in making the vision laid out in the Family Justice Review a reality.”

Jones acknowledged that the proposals to develop a framework of good practice, and those relating to more robust case management in public law cases, would present significant challenges to the thinking and practice of local authorities in the way they developed and presented their views to the courts.

However, she added that the aim of the reforms made such challenge worthwhile.

“Directors of Children’s Services, Cafcass and the judiciary will need to ensure that the whole system responds to these proposals, at a local and national level, and that we all make the most of the new collaborative arrangements to change culture as well as procedure to ensure the focus is on timely and robust decision making," she said. 

The report also contains the judiciary’s response to the Family Justice Review led by David Norgrove.

Philip Hoult

OTHER KEY EXTRACTS FROM THE REPORT

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 President of the Family Division will be assisted in leading the court by an implementation group which will project manage the modernisation programme, and by the regional network of Family Division Liaison Judges.
  • 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.
  • 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.

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.
  • 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.

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.”
  • 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.
  • 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.

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.
  • 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.
  • 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.
  • 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 questions him or herself.

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.

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.

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.
  • 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 is that over time the majority or judgments and reasons can be handed down in an anonymous form which protects the privacy of children and adults.