Speech

Lord McNally’s Local Family Justice Board speech

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Reform of the family justice system.

The Rt Hon Lord McNally

There is no debate about the need for reform of the family justice system. There is a general consensus that the system is not working well enough for the children and families who need it. It is simply not acceptable that children wait, on average, over 45 weeks (and, until recently, over 56 weeks) for their care or supervision case to be resolved.

Nor should we just accept the fact that the courts are the first port of call for tens of thousands of parents who apply every year over contact and residence issues. It is crucial that we do more to encourage them to resolve their disputes themselves, in more positive and constructive ways.

We know just how important family courts are in making sure that vulnerable children end up in appropriate and safe placements. But we must do more together to speed up the process to make sure children and their families can find stability as quickly as possible.

The Family Justice Review made the case for reforming the whole family justice system. You have already heard about the good work that the Family Justice Board and the judiciary have been doing together to take forward these long overdue reforms. And much good progress is being made locally.

But more has to be done, including through legislation.

The Government agreed with the recommendation of the Family Justice Review about the need to set a clear time limit for care proceedings, ensuring that decisions are child-focused and reducing duplication in the system.

The public law provisions in the Children and Families Bill are therefore intended to send out a clear statement to all parts of the family justice system about the need to tackle delay in care cases. The Bill includes measures to:

  • introduce a maximum 26 week time limit for completing care and supervision proceedings,
  • reduce the number of expert reports commissioned so that expert evidence in children’s cases is only used when it is necessary and not as a matter of routine,
  • make it explicit that, when the court considers a care plan, it should focus primarily on those issues that are essential to its decision as to whether or not to make a care order, and
  • reduce bureaucracy by removing the need for frequent renewals of interim care and supervision orders.

More can also be done in relation to private law proceedings, keeping the needs of children firmly at the centre of the system, while explicitly acknowledging the important role that both parents should play in a child’s life post-separation.

So our starting principle is that separated parents should resolve their disputes out of court wherever possible. The Bill therefore makes attendance at a Mediation, Information and Assessment Meeting a prerequisite for applying to court for certain types of family proceedings. This will be underpinned by better online support, access to information programmes, and encouragement to develop parenting agreements. It will also emphasise the importance to children of relationships with wider family members, particularly grandparents.

The Bill also makes it absolutely clear that both parents should be involved with their child after separation, unless there is a genuine welfare reason why this is not appropriate. As well as sending a clear message about what is right for children, the change will help address the perception among parents that the courts are biased in favour of one or other parent.

Our guiding fundamental principle for the family justice system is that it must be about what is in the best interests of the child. The legislation seeks to tear down the barriers that have come between vulnerable children and the stability and security they need to give them the very best chance to succeed.

Legislation is also required to ensure that the right structures are in place to support the reforms. The Family Justice Review found that, despite some improvements, there remained difficulties and inconsistencies in the family court system, with wide variations nationally in how different cases were allocated to different courts. It recommended a single Family Court should be established, with a single point of entry, and that all levels of family judiciary (including magistrates) should sit in the Family Court.

Therefore, we have legislated to set up a single Family Court in the Crime and Courts Bill, which is awaiting Royal Assent.

However, this will not be the end of the process. A lot of detailed work is required this year to develop all of the necessary secondary legislation to enable the Single Family Court to become a reality. This will involve wide ranging issues, such as the allocation of cases to the right level of judge (including magistrates) for both public and private law proceedings, what work will be reserved for the High Court, the appeals process, and what functions can be delegated to legal advisers. As stated earlier, it is intended that the Single Family Court will be implemented in April 2014.

Plans are already in place to take this forward, with the intention of assisting you all in making the setting up of the new family court a success and to ensure the family justice system provides a more accessible, efficient, and effective service.

Family justice reform is taking place within a challenging economic context. We remain in a climate of fiscal challenge and we must continue to reduce public spending wherever possible. This means that every element that demands funding from the public purse must be examined to ensure that the price paid is consistent with fees paid elsewhere in Government for similar work and represents value for money.

I wanted, therefore, to take this opportunity to talk a little about the legal aid reforms which impact on family proceedings – both in terms of the changes that have just come into effect, as well those we are currently consulting on for the future.

I recognise that there is concern over the impact that the removal from scope of private law matters will have on both individuals and the courts. But we must not lose sight of the fact that many disputes are - and have always been - settled away from the courts, often by the parties themselves, with the help of others within their communities or with the support of paid professionals such as mediators, litigators or arbitrators. And even where cases do reach the courts, litigants in person have always been present in significant numbers. In around half of all private family cases at least one party does not have a lawyer with them in court. Our small claims courts work very well on the premise that legal representation is the exception rather than the norm.

I welcome the fact that, already, a progressive and diverse range of services is springing up, recognising and matching with individuals’ differing needs, and helping them resolve their problems and navigate the legal system. Some are Government funded, such as the SortingOutSeparation App; others are run on a voluntary basis; and others are commercial endeavours run by entrepreneurs who realise the need to provide bite sized support or fixed cost packages to suit the needs and pockets of their clients. The arrival of Co-op legal services in the family advice market provides perhaps the most significant example of new players seeking to change and innovate.

Unfortunately, the continuing fiscal challenges we are facing mean that we need to go further.

It is very encouraging that the duration of public law family cases has already reduced significantly. And with the family justice system undergoing significant reform, in the future this will result in a more streamlined and effective system.

Logically, these reforms mean that solicitors need to do less work per case and fewer expert witnesses will be needed.

The consultation document we have recently published sets out a limited package of proposals that are intended to ensure that fees paid reflect efficiencies of reforms in the justice system, represent value for money and are fair and consistent with those paid for similar work elsewhere.

My officials will be conducting stakeholder events around the country during May to provide interested parties with an opportunity to develop a clearer understanding of the proposed changes. This will enable them to feed constructively into the consultation process. Details have been provided to the affected representative bodies.

The reforms that we are undertaking will only succeed if you, the professionals on the ground, help us to take forward these changes and ensure that we all work with common purpose towards the same aim - that all children, whatever their background or start in life, have the opportunity to realise their potential and to succeed.

In particular, we have a fundamental responsibility to look out for the most vulnerable children in our society. Not only to protect their welfare, but to safeguard their interests and their future.

Published 24 April 2013