28 May 2010

In my first week as Family Law PSL at Jordans, "cuts" appears to be the media watchword of the minute. The news of a civil service recruitment freeze adds to the concerns for the family justice system and no suggestion of imminent reform in the Queen's Speech. The Official Solicitor has just revealed that his staff are unable to respond to the increasing demand for his appointment. There will be delay (see Newswatch 27 May 2010).

As I consider some of the recent case law, the topic of resources seems to be increasingly pervasive. There is clearly a fine line to tread in striking the right balance between safeguarding the child and the prudent use of resources. Whilst lawyers argue over whether a child is entitled to services under s 20 or 17 CA, or whether he is accommodated under s23(2) or (6) (see for example SA v KCC [2010] EWHC 848 (Admin) and query whether the cost of this litigation did not outweigh the cost of the funding in dispute), the last 12 months saw the number of care applications rise by 34%.

Similarly in private law matters, access to justice must be weighed in the balance with the husbandry of judicial resources. In the matter of D (A Child) [2010] EWCA Civ 593 the Court of Appeal was confronted with Cafcass' well-documented problems. It set aside the Recorder's judgment granting the mother permission to relocate with the child which had been given in the absence of a Cafcass report. The Court observed that justice must be seen to be done and expressed regret that both parties had been so badly served by the family justice system. By contrast, the case of Re H (2010) had been adjourned for the Cafcass officer to travel to the Czech Republic to make inquiries about the suitability of a mother's proposed relocation there, which the Court of Appeal of Jacob, Lloyd, and Wilson LJJ clearly found unjustifiable.

As Thorpe LJ pointed out in Re C [2009] EWCA (Civ) 994 in declining to order a fact finding hearing, "It is well known that the family justice system... is stretched to breaking point. Judges have an obligation to safeguard and to husband the judicial resources of the court" (see also Sandra Davis' opinion piece of 21 May 2010). The President has this month given a further Practice Direction clarifying when split or fact finding hearings may be appropriate.

But whilst avoiding unnecessary and wasteful hearings, the court must not overstep the mark. In Re A (Contact s 91(14)) 2009 EWCA (Civ) 1548 the Court of Appeal reminded the lower courts that s 91(14) orders should be a weapon of last resort and used sparingly in cases where there have been repeated and unreasonable applications. The Court of Appeal noted that it has spent a "surprising and unfortunate amount of its time reversing such orders which have been made on an inappropriately summary basis". In this case, the order was made of the judge's own motion without hearing argument on the point. Suggestive perhaps of an over-zealous ambition in some quarters to keep private law children disputes away from the courts?

It goes without saying that care is needed to ensure the pressures on the family justice system are not allowed to obstruct justice, especially where the most basic of human rights are engaged. The effectively summary removal of two young children from their mother's care (no doubt largely due to an intensely pressured list on the last court day before the Christmas break) with no provision for a hearing for the matter to be fully investigated, demonstrates the importance of judicial resources being allocated wisely (Re S (Minors) 2010 EWCA (Civ) 421).

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

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