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Family Justice Review Analysis: Mark Paulson, The Law Society

Date:3 NOV 2011

Law SoceityThe Ministry of Justice today published the Family Justice Review's final report. The report's recommendations will need careful studying by everyone working in family justice - judges, lawyers, social workers and guardians. Although there have been seven reviews since the Children Act 1989, none of which have led to lasting change, this is by far the most comprehensive report yet, so it might just be eighth time lucky.

As the review says, family justice is failing children and families. Delays in public law cases are little sort of a national disgrace, with care and supervision cases taking on average over a year - and that figure has grown worse even in the six months since the FJR's interim report was published. The system is also failing the dedicated individuals working within family justice: morale is low, and there is a lack of trust and collaboration between different parts of the system.

In 1991, when the Children Act 1989 came into force, it was expected that care proceedings would take 12 weeks. It is a sign of how the system now cannot cope with the demands being placed on that the review is calling for a statutory six month limit on care and supervision proceedings, to be extended by the judge only in exceptional circumstances.

Halving the length of public law proceedings will require more court time, more judges' time and more time from family solicitors. The report expresses concern about the impact of legal aid cuts and says that the MoJ and the Legal Services Commission should monitor the impact carefully, because the supply of properly qualified family lawyers is vital to the protection of children.

The report calls for greater rigour in the use of expert assessments and calls for the Law Society to provide training opportunities for solicitors on how to draft effective instructions for expert evidence.

The future of the tandem model had been called into question in the interim report, but the final report recognises its place as an important safeguard which requires resources to be carefully prioritised and allocated. There is a welcome recommendation to remove charges to local authorities for public law applications and to local authorities and Cafcass for police checks in public and private law cases, as an unnecessary waste of valuable resources.

The review is also concerned with faster justice in private law, but legal aid cuts will lead to more litigants in person with poor understanding of the process and often unrealistic expectations, slowing down proceedings even further. The 10% of separating couples who go to court invariably bring with them the most intractable and bitter disputes about contact and residence, terms which the review says should be discarded in favour of the promotion of Parenting Agreements.

The report calls for greater diversion of cases from the courts through increased use of family mediation to reach parenting agreements. The Law Society agrees that family mediators should be required to meet high standards - but currently there are no standards for privately-funded family mediation.

In a welcome acknowledgement of the role of solicitors, the report says that lawyers play an important role in ensuring the speedy resolution of cases and in supporting families to negotiate settlements and narrowing issues where matters are contested. The review team was impressed by the high standards of accreditation schemes offered to solicitors practising in family law; these give confidence to users and take up should be encouraged.

The ball is now in the Government's court. The Ministry of Justice's response is expected towards the end of the year, with legislation to follow in May. The FJR proposals are ambitious and they deserve resourcing accordingly: half measures will not succeed, and the opportunity will be lost. It is better that reform is planned and implemented properly, then change introduced piecemeal and quickly. Even in these straightened times, the Government has to find the money.

Mark Paulson is the Head of Family and Social Justice team at The Law Society. The Law Society's Family and Social Justice team negotiates and lobbies on a range of family and social justice issues. Follow the The Law Society's Family and Social Justice on Twitter: @LSFamSocJustice.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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