Family President praises revised PLO but warns of too many old care cases

The revised Public Law Outline is achieving “quite remarkable things” in terms of speeding up child care proceedings, but there are still too many care cases whose commencement dates back years rather than months, the President of the Family Division has said.

In his seventh View from the President’s Chambers, Sir James Munby wrote about the underlying changes to the cultures and practices of the family courts that needed to be embraced.

Sir James said he suspected that much of the time “we do things for no better reason than because they are familiar to us”.

He added: “There are, even in the family courts, principles that ring down the centuries, that are as true now as ever. But mere antiquity of practice is no good reason for perpetuating what is no longer relevant or justifiable.”

The judge said that despite all the good work, there were still things that needed to change.

“In the first place we have all grown up to accept that delay is bad for children, but there is still a long way to go before we make a reality of that,” he suggested.

The President said the twin fundamentals of judicial continuity and robust and vigorous case management had to be made a reality.

However, he argued that judges alone could not eradicate “the scourge of delay” or themselves deliver all the benefits of their robust case management.

The judge repeated a previous warning he had made that something must be done to improve practice and performance in court offices. He said:

• Court officers must ensure that orders, especially if directed to third parties not present at the hearing, are sealed and sent out promptly. “There are still, unhappily, places where, despite all the loyal enthusiasm of the staff, there are wholly unacceptable delays in achieving this surely very basic requirement”;
• Another problem, “still too frequently encountered”, was the repeated failure of court offices to ensure the speedy provision of transcripts required by the Court of Appeal, “with consequential delays that are as distressing to the litigants as they are inimical to the speedy delivery of appellate justice”. It was “concerning” that the Court of Appeal had had cause to complain about this on three occasions in the last few months.

The President said an even greater cause for concern, he feared, was “something symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated”.

This was the “slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by the family courts”.

There was simply no excuse for this, the President said – orders, including interlocutory orders, must be obeyed and complied with to the letter and on time.

“Too often they are not”, he said, adding that the court was entitled to expect – and from now on family courts would demand – strict compliance with all such orders.

The judge said it was a particularly serious matter if the defaulter was a public body. Non-compliance with orders should be expected to have and would usually have a consequence, he warned.

Sir James highlighted in his article a number of important recent rulings:

• R v Farooqi and others [2013] EWCA Crim 1649 and the comments of Lord Judge on assertion and cross-examination;
• Re B-S (Children) [2013] and In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 in relation to adoptions.
• Re W (A Child), Re H (Children) [2013] EWCA Civ 1177.

The President meanwhile praised the “remarkable success” of the Triborough Care Proceedings Pilot and the “pioneering” Family Drug and Alcohol Court Project.

The judge said a report on the second stage of evaluation of the FDAC were due to be published next month, but he added that the indications were “very promising”.

Sir James said consideration needed to be given to how best the PLO can accommodate the FDAC model.

“We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to be become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy,” he added.

The President meanwhile paid tribute to those involved in the family justice system. “We all know – even if too many outside the family justice system, including those who ought to know better, neither know nor care – just what a good job you are doing: your endless willingness to ‘go the extra mile’, to work long hours at great pressure in the most emotionally draining cases that anybody in the entire justice system ever has to cope with, and too often with inadequate financial reward and little public recognition.”