Family Law

Sir Mark Potter, President of the Family Division gave a powerful speech on the problem of resources and its effects upon the Family Justice System at the annual Association of Lawyers for Children's Hershman/Levy Memorial Lecture last week.

The President spoke with regret of the crisis in the family justice system resulting from the growth in applications which has not been matched by an increase in resources. He criticised the Legal Services Commission for not listening to the wide range of professionals warning them of the mass exodus of experienced professionals from the legal aid system; and praised the dedication of those who remain representing children and families in the face of poor remuneration and uncertainty about the future of legal aid provision.

Sir Mark said it was unfortunate that neither the Government nor Lord Laming had acknowledged that there was a problem with the provision of resources.

"Overarching objectives, key performance indicaters and commitments to continuous improvement are all very well, but they cannot alone achieve anything significant if they are unrealistic in relation to the resources available to the key partners in the system", Sir Mark said.

Another resourcing problem that Sir Mark said was not being adequately addressed was proportion of proceedings involving families with language difficulties. "As all judges can testify, the need for an interpreter can double the length of court proceedings".

The President also criticised the changes that led to Cafcass becoming answerable to the DCSF. He said: "The division of responsibility between the DCSF to whom Cafcass are now accountable, and the MoJ, as the body responsible for HMCS and the support of the judiciary, is scarcely an example of "joined up" government."

In response to "unacceptable" delays by Cafcass in the appointment of guardians and the rendering of reports, Sir Mark announced the introduction of local duty guardian schemes in some areas where there is a shortage of guardians and children in care cases are facing delays as a result.

"Before the end of July, I shall issue Interim Guidance setting out measures which may be adopted in the short term under local agreements between Designated Family Judges and local Cafcass service managers to reduce backlogs and delays in reporting and the allocation of guardians having regard to the particular problems in the area. It will not be in the form of a long term Practice Direction, which is the form appropriate for implementation of standard practice nationwide, but of Interim Guidance encouraging the making of such local arrangements within particular parameters.

"In Public Law it will permit care centres and/or groups of courts to enter into duty guardian schemes with Cafcass with the provision of advice at the first appointment to a solicitor appointed under S.41(3) of the Children Act 1989, provided that there is subsequent allocation to a named guardian prior to the CMC, to be responsible for the future continuous conduct of the case."

Sir Mark added that the Guidance will also provide that the guardian need not attend fact finding hearings unless requested to do so by the court.

The President continued: "In Private Law the Guidance will encourage the making of local agreements in court business committees to rationalise the days and venues upon which First Hearing Dispute Resolution Appointments will be listed to make the most effective use of judicial and Cafcass resources in the local area.

"Where the safety checks are not yet complete, but there is on the face of it no reason to suppose the presence of risk, the court will be encouraged to approve or formulate an appropriate order indicating that it will, on the date fixed for the next appointment, make an order in these terms without the need for further attendance by the parties, provided that the safeguarding information which becomes available through Cafcass is satisfactory.

"The draft Guidance also encourages a critical attitude to the necessity for full s.7 reports", he added.

Sir Mark emphasised that "In agreeing what is in effect a reduced service from Cafcass as a pragmatic solution to immediate problems, I have made clear that such solution be recognised for the interim scheme that it is, and the form of the document being drafted makes this clear. It must not simply become or be adopted as the benchmark for the future".

In his speech, Sir Mark was very supportive of family law practitioners in their remuneration dispute with the Legal Services Commission, who he said "lacked realism".

Sir Mark said: "It emphatically is my concern as Head of Family Justice to bring forcibly to the attention of the government the threat to the efficient working of the system in terms of both efficiency and delay if the LSC proceeds regardless of the warnings of the profession and, in particular if those specialising in children cases abandon or cherry pick publicly funded work.

"Quite apart from the strain upon family judges and the courts' administration by HMCS, there will be significant further delays in the court process caused by inexperienced advocates undertaking more complex work; longer and less focussed hearings; a higher incidence of litigants in person and a greater likelihood of appeals where cases become derailed because of inadequate representation at first instance."

Commenting of Sir Mark's speech, Piers Pressdee, Co-Chair of the ALC said: "The President has it absolutely right. The family justice system is being failed by inadequate resourcing, by a lack of joined-up thinking and by the Government's inability to recognise the value of the expertise that it has at its disposal."