Monday, 5 December 2011

Family Business Authority - What point without accountability?

Sir Nicholas Wall, President of the Family Division of the Courts, has called for there to be a Family Business Authority lead by the judiciary to ensure better case management and judicial continuity. He admits that there will need to be a cultural change within the judiciary for this to be effective. Sir Nicholas has also said he does not believe that solicitors extend court proceedings.

On this latter point, perhaps the missing word is 'deliberately'. I've seen countless cases where solicitors are disorganised, fail to manage their clients in terms of filing statements, with statements being filed weeks, if not months late. There is rarely a comment from the judge. Deadlines pass, and I routinely get asked 'what should I do?' by the confused litigant who had assumed that a judge's directions carry some weight. The litigant-in-person panics about filing and serving a statement on time, only to find the 'professionally' represented 'other side' dragging their heels and the courts offering no sanction. Cafcass reports are late, and at times only appear on the day of a hearing, in clear breach of Family Proceedings Rules. Evidence gets dropped into the mix at a hearing without notice, court bundles are not agreed, and again, the amateur litigant-in-person sees the professional solicitor leave the production of the bundle to the last minute (so much for an equality in arms). Perhaps if Cafcass and the legal profession faced a daily fine for late filing, late production of bundles, late reporting etc, we might see the desired improvements in time and case management.

What is lacking is not a 'business head', but professionalism, organisation and accountability.

Should we trust this new Family Business Authority to deliver? Wall seeks to avoid interference by politicians in the running of the courts, but the reason why a new authority is required is because the court has failed. 22 years ago, Parliament gave responsibility for time management to the judiciary, and made this a statutory duty. The second principle set out in The Children Act 1989, after a child's welfare being the court's paramount consideration is:

"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

The judiciary has failed to safeguard child welfare through their failure to rigorously uphold this principle. A matter which could be resolved in days often takes months, if not years. We agree that a Family Justice Service mostly staffed by ex-Cafcass Reporters may not be the best organisation to deliver efficient case management... 40 weeks for a Cafcass Report... but the judiciary's track record is little better.

Giving the Bar Council’s Law Reform Committee lecture, Sir Nicholas Wall said that ‘active case management and judicial continuity are the two principal contributions which the judiciary can make to the problem of delay’.

Sir Nicholas, why, in 22 years, haven't you done this before, and why should we think you can deliver this now? Perhaps OfStEd should be brought in to monitor case management, and report back to Ministers, and you should be held accountable for missed targets. Perhaps 'the wide ambit of judicial discretion' needs to be curtailed to deliver a more consistent and less uncertain (if not haphazard) service. I can see no constitutional reason why we need a family court independent of Government. Perhaps if the judiciary were properly accountable, we might see the improvements that have been lacking in the past 22 years.

I might be mistaken, but these latest recommendations to 'improve' the system may simply be a late attempt to retain control after two decades of failure.

On one other point, Wall suggests that it is a bad thing for there to be more litigants-in-person when and if legal aid goes. One hopes that this is due to a belief in the need for justice and upholding the ancient right of an equality of arms. To further these noble aims, we await his issuing new practice guidance granting rights of audience for McKenzie Friends whenever the litigant requests this... surely it should be the litigant's right rather than the judiciary's reluctant gift.