Lord McNally’s speech to the Birmingham Law Society Family Conference 2012

Lord McNally's speech on the government's programme of reform addressing the Family Justice Review.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The Rt Hon Lord McNally

Good morning ladies and gentlemen. It’s great to be here this morning at the Law Society Family Conference to talk about the future of family justice system. I want to thank you for inviting me.

I believe I speak for us all when I say that we want a family justice system which delivers the best possible outcomes for the children and families who come into contact with it. It is simply unacceptable that some children wait more than a year for a decision to be made about their future, or that some parents can use the court process to inflame further conflict with their former partners.

This is why our programme of reform addressing the findings of the Family Justice Review is so important; and I’m pleased to say there is a real sense that all of us, from government to the judiciary, from social workers to lawyers, are absolutely committed to working together to achieve the changes the system so badly needs.

We have already made some progress in delivering these reforms and have been working with the judiciary to create a more effective court system. As a first step to this we have introduced legislation to create a single family court. Once implemented this new court structure will allow for the more efficient and more flexible deployment of judicial resources. It will also be easier to understand and navigate for court users.

There has been substantial progress in setting up new governance structures for the family justice system. The Family Justice Board has now been established and we have appointed David Norgrove, who chaired the Family Justice Review, as the independent chair. The Board has developed a system-wide action plan which sets out the contribution that the Board and its partners will make to the family justice reform agenda. This represents a big step in cementing the inter-agency cooperation that will be required to achieve our reforms.

I’m extremely encouraged by the progress which has been made in setting up Local Family Justice Boards. These local boards are now up and running. This is testament to the commitment and energy which exists to bring forward the improvements that the system so badly needs. These Boards bring together individuals from agencies from across the system working together to provide locally tailored, system-wide solutions to improve the family justice system. They, and you, have a crucial role to play in driving forward the reform agenda.

Some of you will have read Mr Justice Ryder’s proposals for the modernisation of the system. I warmly welcome these proposals and hope that we will continue to work closely with the judiciary in the implementation of these reforms. The response of the judiciary to the recommendations of the Family Justice Review has been extremely positive and their proposals for reform run in exactly the same direction as our own.

Finally, we launched a new tool, the Care Monitoring System, in April. It tracks the care case process from start to finish at court level and will give us a far clearer understanding of the reasons for delay and where it is caused. The introduction of the CMS is a big step towards reversing the lack of quality data, something which has previously hindered attempts to understand and reform the family justice system. Importantly this data will be accessible at a local level so will be used as a tool for local change.

But there is yet more to deliver. This month we published the draft legislation which forms part of our system-wide reforms relating to both public and private law. Where the state intervenes to take children into care our overriding priority must be to significantly reduce the unacceptable level of delay that currently exists. That is why we have just published a draft clause to introduce a 26 week time limit for completing care cases. This is a limit, not a goal; where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the Children and Families Bill, scheduled to be introduced in early 2013.

A number of other reforms will support the introduction of the 26 week time limit. We must reduce the number of expert reports used in court proceedings. Such reports take up precious time. Experts’ reports can be vital, but they should only be used where they are necessary to determine a case and the court should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We are already planning changes to the Family Procedure Rules to bring this into effect and hope to implement these by the end of this year. We will need the support of you, the legal profession, in reducing the number of expert reports requested in public law.

I very much welcome the work that the Law Society is undertaking to develop guidance and templates to promote better, more consistent approaches to instructing experts. I believe these initiatives will support and complement the draft clauses we have published to ensure experts are used only when necessary, and that when they are used, their evidence is focused on the key issues for the court.

I also welcome the Law Society’s role in establishing the Faster Family Justice Group which I know is a cross agency forum for supporting the family justice reform programme. It is an excellent example of the collaborative approach we must all take to progress this agenda.

The quality of submissions made to courts by local authorities needs to be improved. While there is some excellent practice, in too many areas, poor quality or late submissions delay cases and lead to too great a reliance on time consuming expert reports. The Department for Education is working closely with the sector and the Association of Directors of Children’s Services on a new programme of work to strengthen court-related skills among social workers. The aim is to ensure that evidence submitted to the courts is robust and of a high quality.

It is vital that we strip out bureaucracy and duplication so that the 26 week limit can be achieved and practitioners are empowered to do the jobs that they are trained for and committed to. Our draft legislation includes clauses to make it explicit that the court should focus only on the critical issues of the care plan – essentially the provisions of the plan that set out the long term plan for the upbringing of the child. We will also remove the bureaucratic processes connected with the renewal of Interim Care Orders and Interim Supervision Orders. And, where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.

But it is not only the public law system which is need of reform. The draft legislation also brings forward a number of changes to the private law system. We want a simpler system in which people are supported to resolve disputes themselves, as early as possible and away from court wherever possible. This means that dispute resolution services, in particular mediation, needs to move to the mainstream and become the default option considered by separating couples and parents for whom it is suitable and safe.

As a result, in line with reforms identified by the Family Justice Review, the draft legislation contains a clause which will make attendance at a Mediation Information and Assessment Meeting (MIAM), or evidence of exemption from this requirement, a prerequisite for separating couples wishing to make an application to the family court.

Alongside this legislation, the government is looking at how Parenting Information Programmes can be made available pre-court and developing a new form of Parenting Agreement to support parents to reach co-operative agreements focused on the needs of their child.

An amicable solution is better than a litigious one and, once again, we will need your support in delivering this message to the public.

I know many of you are concerned about the impact that changes to legal aid will have on our reform agenda. Although self represented parties have always been a feature of the justice system, with about 40% of private law children’s cases currently involving one or more self represented parties, the changes represent a challenge.

Legal aid will of course remain in public law cases, in private law cases where there is evidence of domestic violence and be available for family mediation in private law family cases. We envisage spending an extra £10 million on this per year.

We accept, however, that there will be disputes for which mediation will not be suitable. In these cases, we need to make sure that self-represented litigants are faced with a system that is simple to understand and in which support and guidance are easy to access. We are already taking steps, working closely with the judiciary, to ensure that the system can meet the needs of self-represented parties. Work is underway to develop a specialist pathway for individuals without representation; an online information hub, Help and Support for Separating Families, is set to be launched in October. The hub will provide online information and support to separated or separating parents and divorcing couples. It will be supported by telephone and face to face support in 2013 for parents that cannot access the web or need more intensive support. These changes, once fully implemented, will ensure that the system is well-placed to manage the expected increase in self-represented parties.

My department is also working closely with not for profit organisations to provide support for self represented parties, which have always been a feature of the justice system.

We welcomed the Civil Justice Council’s report on self-represented parties that was published late last year and we are working with the CJC and the Family Justice Council on how to take these recommendations forward.

We have made funding available to support this work. It will focus on five not for profit organisations delivering projects that are designed to address the different needs of self-represented parties, but which also complement and support each other. Examples of the sorts of things we have funded include the expansion of the Personal Support Unit, a charity based in the Royal Courts of Justice, which provides volunteers to accompany people to court as well as funding guidance produced by not-for profit organisations specifically tailored to self represented parties.

The collaboration involved in these projects will ensure that the funding available adds the greatest value to what can be achieved for self represented parties. The support provided as a result of this work will offer assistance to self represented parties before they get to court, whilst they are at court and more general support to meet their needs. Work has already begun on these programmes and they will all be in place before the legal aid reforms take effect.

Although there is a strong support of many of our reforms, the issue of co-operative parenting remains controversial. I’m sure that most of you are aware that our consultation on this issue closed earlier this month. We are now in the process of analysing consultation responses and aim to publish a response in October. Our overarching objective is to ensure that where safe, and in the interests of the child, children maintain a relationship with both parents following divorce or separation. Whatever change the government brings forward, I wish to reinforce the fact that the welfare of the child will remain as our paramount consideration. Our new Children’s Arrangements Order, replacing existing contact and residence orders, is consistent with this principle: focusing attention on the child’s needs, rather than a perception of parental rights towards the child.

As the Review findings highlighted, family practitioners are highly committed and do a good and important job because they recognise that providing family justice is a vital service. We in government share that view, which is why family justice is now such a key priority. These reforms have children at their heart and will help practitioners secure the best outcomes for children and families. It is very pleasing to see this has been widely acknowledged and that the legal profession, judiciary, government agencies and local authorities are all embracing what is a very challenging agenda but one which will put the family justice system on a modern and sustainable base for the future;

A system where delay is the exception rather than the norm, where people are supported to resolve disputes themselves, as early as possible and away from court wherever possible. A system that is coherent and is well led by the Family Justice Board with buy in from all partner agencies. In short, a family justice system that children and families can trust and rely on.

I know I can count on your support in delivering this.

Thank you.

Published 1 October 2012