Mr Justice Ryder has today published judicial proposals for the modernisation of the family justice system. Although the judiciary can be criticised for being out of touch, the proposals contained in this report are absolutely at the cutting edge of the problems being faced by the ‘overstretched’ court service.
They demonstrate a willingness to grapple with the real issues faced by litigants and a desire to secure access to justice for the future. One such example of this is the reference to how the courts are going to deal with agreements made through arbitration. The Institute of Family Law Arbitrators launched the Family Law Arbitration Scheme in February this year and it is set to become a real alternative to the court process. It is exciting to see Mr Justice Ryder recognise this important new area in his report.
Claire Blakemore, partner in the Family Team at international law firm Withers comments:
“Mr Justice Ryder has embraced the Olympic spirit in his approach to reform of the family justice system. He described the process of creating a new unified family court as ‘a once in a lifetime opportunity to create and fashion a court in the image that you and I want’. Like many of our athletes, however, a gallant effort will not be enough. Members of the family justice system at all levels will have to undertake extensive training and huge resources will be required to create the lasting legacy of an efficient family justice system for our future generations.
“Mr Justice Ryder’s proposals could result in a more efficient family justice system available to all (and not just those involved in care proceedings) but it will only do so if judges at all levels receive the necessary training and manage cases properly. They will also require the support of a well-resourced infrastructure. The danger is that if the government seeks to introduce changes on a shoestring, cases will drift without direction and hobble through an already overstretched administrative system resulting in even more delays.”
Suzanne Todd, partner in the Family Team at Withers says:
“Mediation has received enormous support in the last twelve months and it is clear that the increased use of mediation to resolve issues which arise on the breakdown of relationships will continue, which can only be a benefit to all involved.”
Katharine Landells, senior associate in the Family Team at Withers comments:
“The proposals for reform set out by Mr Justice Ryder herald a new opportunity to bring the family justice system into the modern era, promising to streamline procedures and deliver a culture changing new system for dealing with family law matters. However, for these promises to be fulfilled it will be a case of actions speaking louder than words. If the harm that the current system risks causing is to be avoided there will need to be proper and effective investment in the family justice system together with extensive training and support.“
Sir David Norgrove’s Family Justice Review published in November 2011 found that the family justice system was struggling to cope with its responsibilities, resulting in an increased risk of harm to children.
The government’s response published shortly afterwards agreed with most of the recommendations of the Family Justice Review with one controversial exception. Unlike Norgrove, the government believes that legislation may have some role to play in introducing a presumption that care of children will be shared between separating parents. This issue is the subject of consultation, due to close on 5 September 2012.
In response to the findings of the report and the government’s response Mr Justice Ryder was appointed Judge in charge of the modernisation of family justice programme. Some may say that his appointment was long overdue particularly as specialist family practitioners had been calling for a unified family court since the Finer Report in 1974.
The aim is to provide access to justice for children in families and overcome the delay which paralyses the family justice system. The report endorses a modernisation programme in two phases to be implemented prior to statutory changes which are expected at the end of the modernisation programme in summer 2014.
Phase 1 is based on the introduction of the Crime and Courts Bill which was laid before parliament in May 2012. If passed, that bill will create a new unified family court. In his final report Mr Justice Ryder sets out how the judiciary and Her Majesty’s Courts will introduce new systems managed by the judiciary and led by the president of the Family Division to deal with listing, case management issues, the use of experts and ‘pathways’ in order to streamline and speed up the process of access to family justice.
Phase 2 of the changes is aimed at preparing for the implementation of the government’s second bill, the Children and Families Bill. The Family Justice Review focused heavily on care proceedings and Mr Justice Ryder endorses the aim of limiting care cases to 26 weeks and to minimise ‘misued and over-used’ experts. However, the central aspects of ensuring that judges have greater control including how cases are managed and what issues are to be determined will be relevant to all cases.
Mr Justice Ryder recommended that there be a ‘pathway’ for ‘standard private law cases’ recognising that following the significant cuts to public funding (legal aid) for private law cases the court will have to deal with ‘a volume of previously represented parents who will not have the benefit of legal advice to identify solutions to their problems.’ This pathway will describe what the court can and cannot do, possibly restricting the right of one self representing party to cross-examine the other, instead giving each party their right to have their say.
Financial remedy cases are to be allocated to an existing specialist financial judge. Although there are no changes identified solely to financial cases, if public and private law children cases are streamlined and financial cases allocated to specialist Judges this will help to ensure that all cases are dealt with more efficiently.