Friday, 3 January 2014

Time: Family Law Reform, Advocacy, and Child Welfare

Time is critical in a child's life, and in resolving parental disputes. Long court cases and uncertainty cause stress, depression and other illnesses which can impact on both parents and children (not to mention work and finances, the wider family and the public purse).

The timely resolution of parental disputes was one of the key principles upon which the Children Act was based. yet almost a quarter of a century later, court cases simply take too long.

A Case in Point
Why am I blogging about this today? Another case where a raft of contradictory allegations are unexpectedly dropped into a case at the last minute, alluding to child abuse over years which was never mentioned in earlier proceedings or applications. Given the nature of the allegations, contact is stopped until the allegations can be investigated. CAFCASS have announced they are unable to report for three months. Thoughts of supervised contact are delayed until statements are submitted and future hearings listed, which delays things by at least another month. Supervised contact might be agreed at the next hearing (dependent on the cramped judicial timetable, availability, and in the absence of the CAFCASS report), and then booked, carried out, and reported on... all of which creates further delay. The hoped-for judicial continuity hasn't happened. The Circus has come to town again!

As often happens, there is no independent evidence of abuse. Without going into details, all evidence actually suggests a very happy child, with no behavioural or emotional issues, and allegations are based upon the word of the party who could have raised these allegations on numerous occasions in the past, but didn't. The accuser places themselves in the somewhat surprising position of having sent their child to contact for a long period of time despite 'seemingly' believing abuse was taking place. Forgive me for being a little suspicious... I have little doubt it will be found that there are no welfare concerns when investigations are concluded, but also that there will be no sanctions for false allegations having been made. back to the Children Act 1989, at section 1(2):

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.

How is it that a three month delay, before CAFCASS can report, is acceptable? Why can't CAFCASS report within 7 days. Their resources won't permit it, I know... but the same amount of reporting will still be done by them, the same amount of time spent on meeting parents and writing reports. The delay is caused by their backlog of cases, which needs resolving, and means no officer can be allocated for weeks. 

The problem is we don't expect cases to be resolved quickly. We become used to delays, and it becomes acceptable that the child's welfare will suffer. That's the reality of this case and for this child and many others. The delays are accepted with shrugged shoulders. It's acceptable for child welfare to suffer. 

Broken contact and false allegations, perhaps being two of the most vicious forms of emotional/psychological abuse, aren't treated as domestic violence. Again, a shrug of the shoulders, and a view (with experience) that such things are common in family law cases.

Arguably, our acceptance, the court's acceptance, CAFCASS's acceptance invites the problem to continue, unaddressed.

While understanding allegations need investigating, and that at times the court needs to take a cautious approach, the harm caused to children from a sudden change to the status quo (the cessation of contact) would be mitigated by better case and resource management. Unnecessary delays cause children unnecessary harm. The delays cause harm to both parents (even those who raise false allegations). Also, long cases are arguably more expensive for the public purse, courts and welfare services... but we're used to this situation... shrug.

CAFCASS have previously been censored by the President of the Family Court when cases averaged 40 weeks until a report was prepared. The President should not need to give the CEO of CAFCASS another rollicking. The DfE should be better managing, targeting and improving performance and resourcing.

In the past quarter of a century, we've become used to these failings. Maybe it's time everyone stopped shrugging their shoulders and applied the paramountcy principle to this area too!

The Early, Inquisitorial Approach
In 2012, Mr Justice Ryder (now Lord Justice Ryder) announced that as part of judicial modernisation, the judiciary would take a more inquisitorial approach (see the Fourth Update). I've seen a number of cases in 2013 which were resolved at the first hearing and dispute resolution appointment. I've seen near identical cases take 18 months to resolve. Why the difference?

In the cases resolved without delay, both parties were litigants-in-person, and the judiciary took that recommended inquisitorial approach, questioning both the alleged and the accuser at the first hearing. Cases involved cessation of contact and allegations, but the courts took a firm approach and gave adequate time for both parties to be heard at that first hearing. This wouldn't be achieved in a 15 minute or half hour timetable which is commonplace elsewhere. 

The opinion that litigants-in-person delay proceedings isn't always true. What delays proceedings (aside from poor case management) is insufficient time being allocated to hear evidence at early hearings. Such time, if allocated, needn't place an additional burden on the court, but can and does reduce overall court time when more cases can be resolved on the day by negating the need for further directions hearings and a drawn-out contested/final hearing. 

The courts are using a more inquisitorial approach when parties are litigants-in-person. Arguably, this presents the court with an opportunity for speedier resolution of cases, since the judge will hear oral evidence from the parties from the outset. Where litigants are represented, such an occurrence may not happen until a final/contested hearing (months into proceedings). In early hearings, the advocate acts as a barrier to hearing evidence directly from the client. Hearing and observing the parties is an important part of evidence... so why delay it?

I've little doubt that many litigants wind themselves up as delays cause them to become more stressed. They 'up the stakes', and at times allegations related to historic matters breed, and appear out of thin air during the long pauses in proceedings. 

When the court hears oral evidence at the first instance, directly from the parties, it then has a greater opportunity to make a final order without further delay. This is where the inquisitorial approach can have marked advantages over the adversarial system which remains commonplace in private family law. 

Among the judiciary, there is interest in change. Sir James Munby has now taken over the reins for judicial modernisation following Ryder's appointment as a Lord Justice. The role of the judge as the referee while litigants and their counsel slug it out has been questioned by Lord Judge himself:

'The traditional model of the judge as a passive arbiter, holding the ring between the protagonists, allowing the parties to adduce whatever evidence they wish and however relevant it may be to the ultimate outcome of the case or not, will change.'

We hope that the inquisitorial approach will be consistently applied regardless of whether the parties are represented, and where one or both parties are represented, from the moment the parties first walk into court. This is not a radical idea... it merely takes the preferred approach in public law for a fully inquisitorial system rather than that which exists in private family law... the adversarial fact finding environment... and rolls it out to apply regardless of whether parties are represented. Within that, we would hope for less cross-examination of parties by advocates (at a final hearing), and more instances (ideally universally) where the judge questions the litigants directly (from the outset).

Just imagine an alternative system (which isn't so different from that we're starting to see)...

Statements with evidence are required when the C100 and C7 forms are filed (which should strip at least a month out of court proceedings regardless of whether matters are resolved at the FHDRA). Documents to include a warning that future allegations relating to historic matters will not be accepted unless included within the parents' first statements.

The first hearing and dispute resolution appointment to be held within 21 days of the application being made (and 7 days granted for the respondent's statement), to provide the court with 14 days to assess the evidence on paper.

Litigants to be provided with a paper-based statement template (with a link address where one can be downloaded as an MSWord document). Simple headings included such as:
  • Brief History
  • Child's Circumstances
  • Concerns
  • Requests to the Court
From a pre-hearing reading of those statements, a judge allocates sufficient time for the first hearing and dispute resolution appointment.  If CAFCASS involvement is needed, an officer is requested and appointed to the case, to be present at that first hearing. Counsel may accompany their clients and make submissions, but the clients will be directly questioned by the judge at that first hearing, and the responses of the litigants form part of evidence. If a welfare report is required, this should be conducted within four weeks of the FHDRA, and if there needs to be supervised contact to form part of investigations, this to be started within 7 days of the FHDRA.

Radical? I would have thought more radical would be the system we have, where unacceptable delays are commonplace, child welfare is harmed by delay, and unnecessarily drawn-out proceedings put strains on the public purse.