Chief Justice: Family courts in ‘crisis’

Retiring Lord Thomas says something must be done on public law cases

The outgoing Lord Chief Justice has warned politicians that rising numbers of cases on taking children into care or adoption has caused a crisis situation for the family courts.

Lord Thomas, who retires on 1 October, said in his annual report to parliament that public law applications in the family courts went up around 20% in both 2015 and 2016 — and are still on the increase. He said:

This rise in caseload comes at a time of static judicial resources. The President of the Family Division has described the situation as a crisis, a view with which the Lord Chief Justice concurs.

Sir James Munby said last year that the system was facing a “clear and imminent crisis”. Last month, the top judge also spoke out about the “massive challenge” in private family law, where “the typical litigant now has no legal representation”.

Lord Thomas mentioned a variety of possible solutions to the inexorable rise in care and adoption applications.

They include settlement conferences — discussions between parents and authorities overseen by a judge — which have proved controversial among family lawyers. Settlement conferences are seen as slanted towards “splitting children from their parents”, as Mrs Justice Pauffley put it at a Family Justice Council debate last December.

In his report to parliament, Lord Thomas also noted that “the judiciary has had to defend its independence” in the past year, which will be taken as a reference to the Daily Mail’s infamous “Enemies of the People” front page. He went on to say that “much more needs to be done in terms of deepening the understanding of the centrality of justice and the rule of law among the public, as well as public servants and politicians working in the executive and legislative branches”.

Sir Ian Burnett will take over as Lord Chief Justice next month, becoming the youngest occupant of the role in half a century.

Read Lord Thomas’ report in full below:

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12 Comments

Not Amused

Family Justice in the UK suffers from the fact that it has become a wholly alien and wholly unaccountable echo chamber.

Courts sit in secret. Few, if any, case law is published. Decisions are arbitrary and based either upon individual prejudice or institutional prejudice. Reform by parliament is rejected or watered down. Procedural rules, made by judges not by parliament, act to keep litigants away from access to justice.

Family lawyers and Family judges need to start admitting they have a problem and working with outside forces to find a solution. The small, entirely self referencing, clique of the current Family Courts is rotten to the core.

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Anonymous

NA! Where have you been?

The comments have been overrun recently by left-wing know-nothings. Speak your wisdom here often and help us combat this Corbynite plague.

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The Bar Necessities

So many misconceptions. Family courts don’t sit in ‘secret’, they sit in private. The distinction is meaningful: accredited media representatives have the right to attend hearings and can report on what they see and hear (subject to rules about identifying the parties and in particular any children). In the High Court, some cases are heard in open court and parties can be named.

The criticism of the extent to which case law is published seem disconnected from reality. The Family Division and Family Court published to Bailii at a similar rate to the other divisions. There are far more Family Court (Circuit Judge and below) decisions on Bailii than there are County Court decisions at the same level. Decisions of district judges are not being published at any level, regardless of whether sitting in family or civil.

There have been no meaningful attempts to ‘reform’ family law in the last 25 years. The odd bit of tweaking, yes, but certainly no root and branch reform. It was Parliament that watered down the most recent bit of tweaking about the ‘presumption of joint parental involvement’ with the result that the new statutory language did no more than codify the pre-existing jurisprudence. The FPR are very similar to the CPR: the only provision limiting access to justice is the requirement that applicants attend a meeting about mediation, but that is a creature of statute (s10 of the Children and Families Act 2014 ) not the rules.

There is, I would entirely agree, a problem about the extent to which different judges (and, god help us, magistrates ) take a different approaches based on personal opinions. I think this is probably more true in cases concerning children then money. I have particular complaint attitude towards allegations of domestic violence is in my view, not adequately focussed on managing and controlling risk, but tends to simply assume an unmanageable risk. There is excessive deference to social workers wanting to remove children. There is a lack of appreciation for shared parenting.

I would welcome better research, particularly in respect of contact and domestic violence (particularly a better understanding of what is required to address the difference systemically violent people and situational violence), the long term impacts of adoption (in particular, with reference to why other Western countries seem less keen on it than we are) and the impact of learning disabilities/difficulties on parenting capacity (in particular, the efficacy of support for the parent). Current awareness of these issues is pretty poor. A large part of the problem is that the law is somewhat hampered by the state of progress in social work theory.

Having said that, I’m curious what kind of ‘outside forces’ you have in mind? Something tells me you don’t have in mind more social workers and academics doing more evidence-based large scale studies on those kinds of topics.

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Not Amused

I will investigate, quite honestly, what you say about CJ judgments on BAILII. My comment was based upon the published law reports, which get yearly slimmer for Family and where authoritative case law, particularly on private law children, seems to me to be negligently scant. To counter, if you are a family practitioner, then I would simply say you don’t cite case law and that it seems an open secret that the decision depends on whether you get DJ X or DJ Y – that just can’t be right.

I think secret is the right term to use, in practice. I have no issue if you prefer private. I think that quite regardless, someone needs to find out what is happening in these courts. You may recoil at the press (I have more faith), but currently no one is speaking out, no one seems either aware or concerned.

I note most decisions are made by DJs and that the rules permit DJs to sit as CJs – which is baffling.

I do not consider FPR mirrors CPR. I will not defend the CPR willingly; but the FPR is beyond parody.

In my view, Cameron and Clegg did attempt reform. I still do not quite see how or why the Equalities Act didn’t itself also lead to fundamental change. I am old fashioned and fuddy-duddy, but I fail to see any aspect of human interaction where presumed equality is a bad thing. I note the Family judiciary disagrees and I have read what passes for their reasoning.

I am less concerned about money. Although I think it wholly uncontroversial to say that money is broken. Lord Justice Rimer made the point rather well in Prest. But clearly private law and public law children is what actually matters – even I concede those as more important than my own work. Money is just not as important.

“Something tells me you don’t have in mind more social workers and academics” – well quite. There are a few good ones in both of course; but broadly CAFCASS has failed and is unfit for purpose and the academic field crowded by quasi politicians pushing moronic agendas.

I have listened to you. If you take anything from me then I would put in my oar for magistrates, when I was a young lawyer I loathed and mocked them, now I’ve seen them in action I am much more impressed. I do quite like magistrates (and juries for that matter). I have not been impressed by DJs – though I once championed them. They suffer the worst of ‘public sector workers’, they are over confident in the way that only a frontier policeman can be and they are far from the best or brightest of either profession.

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bored

Well you’ve obviously got an axe to grind.

– Private hearings are obviously necessary in hearings about people’s kids, money and love lives.
– Plenty of case law is published.
– Just like everywhere, the quality of decisions depends on the judge.
– Access to justice has been shafted by no access to legal aid.
– There is no shortage of navel gazing.

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Paula

My children was taken Away from me a week ago even though I was working with ss on a Thursday the ss turned up unannounced and taken my children away for no reason what so ever with no s20 or elp or anything now I’m going through fa my courts to fight hard for my kid’s, my children are well cared for have a loving home they are clean well feed and very well looked after never been in harm or anything now my kid’s live and mine comes down to a judge who decides if the children are to come home or permanently put into care, they have riot a loving family away from each other my whole world and heart has been ripped out I love my children very much and each day is a fight missing them madly

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Anonymous

Absolutely distraught at the way our family is ripped apart by the system. CAFCASS have let us down, we are reliant on the judge. In the end it seems everyone listens to the mother who can lie but is not challenged. It’s all much too arbitrary.

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