Judicial Modernisation - Ryder's in the Storm

In November 2011, and following the Family Justice Review announcing their recommendations, Sir Nicholas Wall, President of the Family Division of the Courts announced that Mr Justice Ryder was to be appointed to oversee judicial modernisation "in recognition of the importance of judicial leadership in relation to making the court process more efficient while ensuring all parties' rights are properly protected".

Mr Justice Ryder is highly capable. The Northern Circuit's presiding judge, he described himself to an associate of mine as 'not the youngest ever high court judge, but the second youngest'. Undoubtedly a rising star, and intelligent.

The Family Justice Review had proposed the creation of a Family Justice Service, sponsored by the Ministry of Justice, to tackle 'shocking' delays in family court proceedings and to improve inter-agency collaboration. It should not come as a surprise that the judiciary are opposed to this. Sir Nicholas has put forward an alternative proposal that there be a Family Business Authority headed by the judiciary:

The authority is the operational decision-making part of the HMCTS Board for family justice issues. “Its terms of reference and makeup reflect the constitutional guarantee that the Framework Agreement (between the Lord Chancellor and the Lord Chief Justice) provides for judicial independence.”

The judge said he acknowledged that judicial independence was “something of a war horse which is often wheeled out inappropriately….. but here it is a matter of very significant constitutional importance”.

The creation of a Family Justice Service would see the management of cases move from an independent judiciary to a Government Department. The Family Business Authority would see the judiciary retain control, and is the option favoured by Mr Justice Ryder and the Judicial Studies Board.

In the 1989 Children Act, the Government made clear that delays in deciding arrangements for children were harmful. More than 20 years later, the Family Justice Review acknowledged that shocking delays exist and that inter-agency working is inefficient. The judiciary have attempted to manage inter-agency working via local Family Justice Councils which are chaired by the judiciary. Why is modernisation required? The Family Justice Councils and judiciary have failed to ensure that our system of family justice adequately safeguards child welfare.

The Family Justice Council was established in 2004 with the aim of stimulating better and quicker outcomes for families and in the family court service. The council's key roles are to:

• Promote an inter-disciplinary approach to family justice
• monitor how effectively the system delivers the service the Government and the public need and,
• advise on reforms necessary for continuous improvement

Sir Nicholas Wall is protective of the Family Justice Council. “We should also, in my view, be wary of creating additional discussion forums in family justice. There have been too many to count, not all of which have added any value despite the cost of their creation and operation. The exception which proves the rule is the Family Justice Council.” We agree that for there to be improvements, another committee or quango is unlikely to be of assistance when the system requires a centralised, top down management structure which has control of all resources required to fulfill its objectives.

Can Mr Justice Ryder succeed where the Family Justice Councils and his predecessors have failed? We believe he faces a task made impossible by the constitutional structure and self-interest of our family justice system. Why? Four reasons:

1. Judicial independence and the fiercely protected individual judge's wide ambit of discretion in how cases are determined. Ryder has previously proposed there be more central guidance. This in itself defeats the judiciary's argument that judicial independence is sacrosanct. You cannot straddle two boats sailing in opposite directions. We agree with Ryder that there needs to be greater consistency, but doubt this can happen when each judge is 'king in their own court' which we believe to be a fundamental reason for the inconsistencies we currently see. In what 'Business Authority' does every individual member of staff have automonomy in their day to day work. In what business can middle to senior management only be sacked if voted out by both Houses of Parliament.
   
2. A Family Business Authority has nothing to do with business and cannot be an authority when it does not control budgets, resources, and where there is little effective monitoring of performance. Any successful business also has independent auditors and direct accountability to shareholders who can hire and fire.
   
3. CAFCASS are accountable to the Department for Education. Her Majesty's Court Service is an agency of the Ministry of Justice. The Family Justice Council is an independent body sponsored by the Judicial Office. Judges carry out a mix of criminal, civil and family work, each of which has separate divisions and heads.
   
4. I doubt the Family Business Authority will objectively tackle resourcing. There are seemingly too few judges, their holidays are too long and salaries too high, with a District Judge in the Family Proceedings Court earning £102,921; a Circuit Judge earning from £128,296; a High Court Judge earning £172,753; and a Lord Justice of Appeal earning £196,707. Compare this with an MP who earns £65,738; a Minister who earns £134,565; and our Prime Minister who earns £142,500. Could there be more judges, on a lower salary?

Our High Courts don't open until 11th January, close on 5th April and re-open on 17th, are closed for another week in June, close again for 8 weeks in the summer and break up on 21st December.If Mr Justice Ryder wishes to create capacity in the courts, cut judicial holidays to 6 weeks a year. This alone would increase capacity in the High Court by 13%.

We need specialist and dedicated family judges focused on family work. The President of the Family Division of the Court appears unconvinced of this.

Sir Nicholas has said that he is doubtful about judges having an unvarying diet of family work and “My personal view is that for the circuit and district benches, a mixed diet of family with crime and/or civil is the best way of keeping sane, particularly with the enormous pressure of work under which the bench has to operate.” No doubt the CAFCASS Officer or Social Worker or Family Law Solicitor would like the same choice but most retain their sanity without the benefit of 13 weeks' holiday a year or a salary greater than David Cameron's or the variety of work that the judiciary seemingly need. Is a High Court Judge's work more demanding than that of the Minister of Defence with responsibility for our troops in Afghanistan and Iraq, or George Osbourne's in the current economic crisis?

Sir Nicholas says there needs to be cultural change, but his attitude to the needs of the judiciary is demonstrative of the problem. Who does our current structure serve... the public or the practitioners? If a structure doesn't work, and management fails, there needs to be a new structure and new management.

What is more sacrosanct, judicial independence, or succeeding in providing an efficient service which safeguards child welfare which should be the primary purpose of the family justice system before any consideration as to tradition, protectionism, or ivory towers. What is a constitution for?

Can Mr Justice Ryder modernise the judiciary and deliver us an efficient Family Business Authority? Perhaps the kindest way to answer is that the best man for the job was chosen, but without the necessary powers, and faced with the culture and protectionism of his peers, we can't see how he can.

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.