» Principles & Aims
» Delay in
Children's Cases - Introduction
» Background to the Study
» Trends in Children Act work
» Main Findings of the Research
» Experts
» Matching the Judge to
the Work
» Case Management
» Other Factors in Delay
Principles and Aims
1. The Government believes that children and their families are entitled to expect a system of family justice which ensures that cases involving them are resolved:
in a way which gives all involved the opportunity to express their views, especially children
in a manner proportionate to the issues at stake
by appropriately trained professionals
within a reasonable time frame
2. This report concentrates on the last of those principles. It outlines the findings of a scoping study on delay in Children Act proceedings undertaken in 2000 and summarises the action that has been taken since that report was submitted to the Lord Chancellor and the Minister of State for Social Care in the Department of Health in 2001.
3. Given the increasing concerns about levels of delay in the family courts in England & Wales the Lord Chancellor considered it imperative that an investigation into the causes of delay and potential remedies to the problem be carried out. In doing so he explicitly supported the Government's commitment to delivering better outcomes for children by working collaboratively across the boundaries of the government departments that have responsibility for implementing the various parts of the Children Act 1989
4. The purpose of the scoping study was to identify whether the Children Act was in need of fundamental reform or whether there were improvements in practice needed to reduce delay. In so doing this study is indebted to the work of Dame Margaret Booth DBE in her 1996 report on Avoiding Delay in Public Law Children Act Cases.(1)
5. A quote from the Government's 2000 White Paper Adoption: a new approach sets the context for this study:(2)
Delay in Children Cases - Introduction
Why is tackling delay important?
6. Crucial decisions about the welfare of children are taken every day in courts across England & Wales. These can be decisions about:
where a child is to live on family breakdown
whether a child should be made the subject of a care order
whether or not a child should have contact with a parent where there has been a history of domestic violence
7. Section 1(2) of the Children Act 1989 specifies that delay in coming to a decision is generally to be regarded as likely to prejudice the welfare of the child.
8. Delay can have a real impact on children. For example the longer it takes to resolve the question of whether or not a child should be taken into care, the longer a child has to wait for permanence in his or her life. This can mean it is more likely that children will live in a series of temporary placements until their future is decided, which may in turn impact on continuity in schooling. 70% of children in care leave school with no qualifications.
9. For children experiencing the breakdown of their parents' relationship the impact can be as traumatic. Families in Conflict (3) published by the Joseph Rowntree Foundation found that for some children, particularly boys, the effects of an acrimonious divorce or separation could be as dramatic as if they had been removed from their families and placed in care.
Expectations of the Children Act 1989
10. The Children Act 1989 was brought into force on 14 October 1991. It heralded the introduction of a new ethos in the way that children cases were to be treated. Lord Mackay of Clashfern, the Lord Chancellor at that time, described it as the 'most comprehensive and far reaching reform of child law which has come before Parliament in living memory.'
11. Many tranches of child care legislation were repealed or consolidated in order to update a body of law which had previously often been described as piecemeal. The Act was perceived to have created a comprehensive code for decision making concerning the welfare of children both in public law (proceedings where the State is involved, for example care and adoption) and in private law (disputes between individuals such as disagreements over where children should live following relationship breakdown).
Principles
12. Three key principles of the new Act were that:
the welfare of the child is the paramount consideration.
the court shall have regard to the general principle that delay is likely to prejudice the welfare of the child. More precisely it is the avoidance of unnecessary delay which gives rise to particular concern within Children Act proceedings. Some forms of 'delay' may be beneficial, for example if time for family therapy enables a child to return home
an emphasis on intervening in a family's life only where necessary, with the court only making an order where satisfied that this is better for the child than making no order at all. This has meant, in child protection matters, an emphasis on supporting families to enable them to remain together wherever possible.
Unified jurisdiction
In addition, through secondary legislation, a unified jurisdiction was introduced to support the handling of Children Act cases. This covered all tiers of court (magistrates' courts, county court and the High Court) and aimed to ensure that cases could be heard at the level of court appropriate to the complexity of the case, by specially trained judges and professionals.
Family proceedings courts (magistrates' courts handling family business) . all public law cases start here and non-divorce related private law cases may also be dealt with here. Family proceedings courts also deal with domestic violence and adoption. Cases can be transferred up to the county court on the grounds of complexity, urgency or consolidation . that is, where there are existing family proceedings already underway in the county court.
County courts . there are three types of court handling family cases. As at March 2002 there are 173 divorce county courts which deal with private law matters and uncontested applications concerning children. Within these 173 courts, 108 are family hearing centres which can deal with any private law matter, including cases which are contested. 51 of these courts (plus the Principal Registry of the Family Division which covers most of London) are care centres. These courts deal with both public and private law matters. Again cases can be transferred up to the High Court or indeed down to a family proceedings court if this is deemed appropriate to the case.
The High Court deals with the most complex cases and tends to determine cases with an international element, for example intercountry adoption and child abduction. The High Court can also transfer cases down to the lower courts. Appeals from Family Proceedings Courts are heard in the High Court.
14. Each tier of court has its own specialist judiciary.
In family proceedings courts, cases are heard by lay magistrates from the Family Panel. They are specially trained to deal with cases involving children. They are advised by specially trained justices' clerks who have a crucial role in dealing with urgent matters and giving directions as to how cases should be prepared for final hearing. Some cases are heard by professional District Judges (magistrates' courts). Again these judges are specifically nominated and trained to do family work.
In county courts, judges are also specifically trained to deal with cases involving children. District judges deal generally with uncontested private law matters and preparing private law cases for a full hearing. Some specially nominated district judges also deal with contested private law matters and preparing public law cases for final hearing. Contested matters are usually dealt with by circuit judges who are nominated either for private law only or both private and public law work.
In the High Court cases are heard by judges from the Family Division.
Deputy judges deal with cases in both the High Court and the county court . again they are specifically trained for such work.
15. This specialism among the judiciary has been matched in the legal profession with Children Act cases usually being handled by solicitors from the Children Panel. Membership of the Panel depends on levels of training and experience. All cases where the parties are publicly funded must be handled by such solicitors. There is no equivalent arrangement for barristers.
16. Social workers too are specially trained to deal with services for children and families. Children are represented in court by officers of the Children & Family Court Advisory & Support Service who are also trained child care professionals.
Working together in the best interests of children
17. In addition to the principle of a unified and expert jurisdiction, the Children Act also envisaged:
a non adversarial approach in recognition of research evidence that conflict is bad for children
working practices based on partnership. The aim was to encourage the courts and the statutory agencies involved in promoting the best interests of children to work closely together to make cases run more smoothly, with the overall objective of improving outcomes for children.
18. The Lord Chancellor's Department consultation paper Promoting Inter-agency Working in the Family Justice System (5) gives examples of the importance of partnership working which are repeated here.
|
The first concerns a child at immediate risk of harm.
|
|
Divorce of couple married for eight years, two children of four and six.
|
The Human Rights Act 1998
19. This Act came into force on 2 October 2000. The Act incorporates the majority of the European Convention on Human Rights into domestic law. This has buttressed the Children Act framework and may have particular impact over time, as UK courts develop their own jurisprudence, taking take into account European Court of Human Rights decisions.
20. Of particular significance in Children Act cases are articles 8 and 6 of the Convention. Article 8 provides a qualified right to 'respect for& private and family life,.. home and ..correspondence.' This means that there should be no interference in a family's private family life unless this is necessary, for example to protect a member of the family from abuse. Any such interference should be proportionate. For example it is unlikely to be proportionate to remove a child from his or her family and to seek to have that child adopted if a family are having only temporary difficulties. Article 6 covers the right to access to a court or tribunal. This includes the principle that matters should be resolved within a reasonable time.
21. One recent case of particular relevance here is that of Re: W and Re: W & B in which the House of Lords gave judgment on 14 March 2002. The substance of this case concerned how the human rights of children in care might be protected. In particular it considered the role of the courts, when the plan proposed by the local authority for looking after the child in care was not being delivered.
22. One element of the House of Lords judgment which may impact on the length of time cases take is the judgment's comments on the role of interim care orders. These are the temporary orders which are used to protect a child who may be at risk of significant harm, until a final decision as to their future is made. In his leading judgment Lord Nicholls said that in:
23. Lord Nicholls questioned whether this judgment was in fact a departure from existing practice. However, it may be the case that some judges will interpret more flexibly than others their powers to delay the making of a final care order until they are satisfied as to the clarity of the care plan for the child made by the local authority.
How long do cases take?
24. When the Children Act 1989 was implemented in 1991, it was anticipated that it would take an average of 12 weeks for care cases to be resolved. This has proved over-optimistic and has rarely been realised in practice. No estimate was made for private law cases. By 1996 care cases were in fact taking 46.1 weeks from the time they started to the time of a final decision.
25. By the end of 2000, this figure had risen again to an average of 50.3 weeks, 4 times as long as the original projection and almost a year of a child's life. In 2001 the figure has reduced, but is still high at 47.1 weeks. There are no national data for private law cases.
Dame Margaret Booth's 1996 Report
26. This increased delay has been despite the publication of the well received "Booth Report" in 1996 which contained a variety of practical and operational recommendations on how delay could be tackled. Dame Margaret found that the problems lay not in the legislation itself, but in the ways in which the Act and the Rules were being operated.
27. Dame Margaret stated that:
28. The key, for Dame Margaret, was for all those involved in Children Act cases to tackle problems pro-actively at local level.
29. She identified particularly the need to ensure:
adequate resourcing
effective administration
more effective procedures for the transfer of cases
firm judicial case management
more certain timetabling and listing of cases
better partnership working
30. The Lord Chancellor's Department drew up an implementation plan following the report, but the bulk of the response to the report came from the Children Act Advisory Committee which had been set up to oversee the implementation of the Act. The Committee produced a Handbook of Best Practice on the Children Act in 1997 just prior its dissolution. The Handbook was disseminated throughout the country and remains a regular source of reference for many practitioners. It sets out a number of key issues relating to how cases should be managed and brings together a number of practice directions underpinning the principles of case management itself.
31. When the Committee was abolished in 1997 there was a vacuum in taking forward its functions in relation to the implementation of Dame Margaret's report and as a consequence some momentum was lost.
32. Even so 48% of those who responded to the questionnaire which accompanied the 2000 scoping study stated that they had taken action as a result of the report. 47% of these respondents confirmed that local measures for change had reduced delay. The main areas of improvement identified were:
more active case management, including greater use of pre-trial reviews to ensure final hearings were ready to proceed
earlier identification of the issues, including when cases should be transferred to a higher court
better administrative systems
33. 30% of respondents said there had been an actual reduction in delay with waiting times shortened by up to 7 weeks.
34. However, 28% of respondents thought the impact of the Booth report was negligible. This may have largely been due to the perceived lack of drive in pushing forward its recommendations. It was noted that some of the recommendations directed specifically at the Lord Chancellor's Department were not delivered swiftly, if at all. For example, Dame Margaret's recommendations on jurisdictional change remained partially unimplemented. The lack of any central force in promoting change has meant that the value of Dame Margaret's recommendations has been significantly reduced.
What has been done?
The Lord Chancellor's Department has introduced a more proactive project management approach to the development of policy and its implementation and evaluation. This ensures that there are effective plans in place to deliver and maintain change in partnership with key stakeholders.
In addition the Department is consulting on an overarching Family Justice Council which will cover the whole family justice system for England & Wales. The consultation paper Promoting inter-agency working in the family justice system proposes to give the Family Justice Council the challenging target of improving the outcomes for those who come into contact with the family justice system, and especially children.
The Background to the Scoping Study
35. This study aimed to identify the main causes of delay in Children Act cases. The key professionals involved in children cases were questioned across a chosen sample of locations. The study was carried out by officials in the Lord Chancellor's Department between summer 2000 and January 2001. The study was designed to map out areas where action needed to be taken to reduce delay. Its findings are not exhaustive and do not claim to represent the position in every area of the country.
36. In addition it must be noted that this study, with its operational focus, was conducted by canvassing the views of the professionals directly involved in handling Children Act cases. Families, and in particular children, were not consulted as part of this initial exercise. However, we recognise that those who come into contact with the family justice system have the right to be consulted and involved and we will be doing precisely that in taking forward the programme for reform.
Terms of Reference
37. The terms of reference for the scoping study were as follows:
To review the causes of delay in public and private law Children Act cases
To review changes and improvements to ways of working since the earlier Booth report in 1996
To undertake an immediate review of jurisdiction in Children Act cases to ensure that cases are heard at the appropriate level and that there are sufficient trained judges and magistrates to deal with this work
To investigate the reasons why family cases continue to go to the county court
To explore whether or not a standard case management protocol could improve the effective handling of Children Act cases and in particular reduce delay
To explore how interdisciplinary professions work together within the context of family cases
To produce a report for Ministers on the need for any wider review of the operation of the Children Act
38. Care was taken to make sure that the locations visited and those consulted represented a balanced cross section of the family justice system as a whole. This report is based on statistical evidence and on summaries of what people said about delay, and how they saw each other's attitudes to it. The report uses these summaries to form the basis of recommendations for improvements to the working practices and systems encountered during the course of the study.
39. The findings of the study were fed into the White Paper Adoption . a new approach. This was issued in December 2000 and contained a chapter on court proceedings. In this chapter the Government made commitments to reduce delay and improve case management, not just in adoption, but also in Children Act cases, particularly the care cases which often precede adoption. The Adoption and Children Bill was introduced in Parliament in October 2001.
Trends in Children Act Work
40. Before going on to look at the study's findings, this section takes an overview of general trends in the volume of cases through the courts involving the welfare of children.
Public law cases
41. The downward trend in the number of children looked after by local authorities which preceded the Children Act ended in the mid-nineties, since when the figures have continued to rise. These figures have been accompanied by a similar pattern in the number of children in care as the subject of a formal care order.(7)
42. These overall trends have not been matched by a similar pattern in applications to the court for public law Children Act orders which have shown a more changeable pattern over the same period. In particular there appear to have been some substantial changes in case volume between years. For example, Children Act applications in public law matters rose by 11.6% in 1997 and over 13% in 1999. (8)
1993 5160 0 3180 0 1675 4 |
1994 4930 0 2910 0 1866 0 |
1995 4980 0 2870 0 1713 6 |
1996 5060 0 2890 0 1606 6 |
1997 5140 0 3010 0 1794 2 |
1998 5300 0 3190 0 1728 4 |
1999 5530 0 3410 0 1977 0 |
2000 5810 0 3640 0 2200 0 |
Figure 1 Public law workload
43. In addition trends vary between geographical areas. For example, in 1998 the number of children looked after by the local authority per ten thousand children varied from 7 in one local authority to over 70 in another.(9) There are also regional variations in the courts with applications for public law orders growing by 33% in North Eastern Circuit in 1998 whereas in Western Circuit applications increased by only 10%.(10)
44. There are also significant regional variations in the length of public law cases, with cases in county courts taking an average of anything from 34.2 weeks from application to disposal in Truro County Court in 1999 to 70.6 weeks in Birmingham County Court. However, discerning the possible reasons for this has proved inconclusive. For example, there is no clear correlation between:
The percentage of looked after children in an area and length of case at court i.e. a busy local authority area does not always mean long disposal times in the court
case volume and length of disposal time
45. However, what is clear is that changeable workloads have an impact on any agency's ability to plan effectively.
46. There is no one obvious single reason for such changeable workloads in the courts and there must be a question about whether the data are always entirely accurate. Some respondents questioned the figures quoted for their courts, especially in terms of the data collected on the time cases take. Certainly, changes in practice and procedure required centrally will have an effect. But local practice and resource allocations may also be a factor in translating central policy into practice. This may be an issue not only in relation to the local authority's approach, but also the policies and practices of local courts and the other agencies and professions involved with the welfare of children.
Private law cases
47. The number of divorce petitions issued has shown a downward trend. There was a rise in the mid-nineties, which may be partly accounted for by uncertainties over the prospects of legislative change on the ground for divorce under the Family Law Act 1996 .
48. However, as with public law, the number of private law applications under the Children Act has been changeable, with significant variations in case volume year on year. For example, applications increased by 11% overall between 1997 and 1998, yet in 1999 applications for private law orders fell by over 20%. (11)
49. There are no equivalent data in terms of the time taken between application and disposal in private law cases, but similar planning issues will arise for courts in handling an unpredictable workload.
Divorce petitions issued
Private law applications |
1993 1844 71 1082 01 |
1994 1755 10 1028 01 |
1995 1739 66 1020 00 |
1996 1779 70 1062 92 |
1997 1637 69 1033 35 |
1998 1658 70 1145 18 |
1999 1677 75 9038 1 |
2000 1578 09 9540 7 |
Figure 2 Private law workload
50. The volatility of Children Act workload has an inevitable impact on resource planning for family cases, particularly when changes in volume in both public and private law workload coincide. There is currently no central mechanism by which local authority workload predictions are clearly fed into the resource planning systems of the Court Service and magistrates' courts service. As is discussed more fully in the sections on judicial numbers and resources which follow below, some of the delays in Children Act cases are likely to be the result of a simple mismatch between the workload and the resources available to deal with it.
What has been done?
Workload predictions anticipated by the Department of Health have been shared with the Court Service and CAFCASS to facilitate a more co-ordinated approach to resource planning across those departments and agencies involved in delivering better outcomes for children.
Findings of the Research
The main causes of delay
51. The principal causes of delay have changed little since Dame Margaret Booth's 1996 report although there are some differences as to priority.
52. The respondents to the report identified three principal causes of delay:
Lack of experts
Not having the right judges in the right place at the right time
Judicial case management
53. In addition, a priority identified by the research team, although it was infrequently mentioned specifically by respondents, was a lack of effective partnership working between those professionals involved in dealing with Children Act proceedings.
54. The next section of the report will examine each of these areas in detail. The issue of partnership working will also be covered, although this issue also tends to form a key element of the other identified problems.
Experts
55. Professional expert witnesses make a vital contribution to Children Act cases, particularly in complex cases where there may be conflicting versions of events. This contribution has been recognised in a number of initiatives which seek to make the best use of experts in family cases, helping both the professionals involved and those who seek their services. For example the guidance produced by the Children Act Advisory Committee, the Expert Witness Handbook & Guidance Pack, the Law Society Directory and local lists.
56. To ensure that expert evidence does not contribute to delay the following requirements need to be met:
experts should be used only where necessary
the number of experts available should be sufficient to meet demand within a reasonable timescale
such experts should be sufficiently trained in court work so that their reports are relevant, complete and focussed on the issues for resolution
instructions to experts should be clear, timely and specific and wherever possible jointly agreed between the parties
court procedures should ensure that the best use is made of experts' time, especially at court.
Dame Margaret Booth's Findings
57. Dame Margaret Booth identified the following shortcomings in the use of experts in Children Act cases:
The pool of experts giving evidence was small leading to pressure on experts' time and hence delays in the completion of the reports
Instructions given to experts were often incomplete or vague and this lack of focus contributed to delay. Experts said that requests could have been more focused on the principal issues, allowing for shorter reports, and that they would welcome guidance on the relative priority of the case, for example, the age of the child
Matters which could have been settled earlier were first discussed at the door of the court. Experts were kept waiting around on the day and asked to set aside days for a hearing when they were only needed for a short time, if at all
There were perceived to be significant disincentives to do court work with delays at court, long waits for legal aid, low remuneration and arguments over payment, particularly where the case became more complex
The Findings of the 2000 Scoping Study
58. These issues have barely changed since Dame Margaret Booth's report despite the initiatives outlined in paragraph 55 above. The next section takes each of the principles outlined in paragraph 53 in turn to identify to what extent these are currently being met.
Experts should be used only where necessary
59. The unnecessary instruction of experts was only regarded as a significant problem by 16% of respondents (37% said it was an occasional problem). However, the study team was given plenty of examples of experts being instructed for reasons other than to provide a professional assessment of a particular point at issue.
60. Social services departments in a number of local authorities said that they were using experts to undertake part of the assessment process which would normally fall to them because of a shortage of staff with the necessary experience and expertise. While this may be an entirely proper use of experts, more worrying was the indication that some social services departments and children's guardians felt the need to instruct additional expert evidence to give their case more authority, that in effect their judgement would not be accepted without it.
61. This accords with the findings of Parkes (1999) (12) and Cohen (1996) (13) who identified an overuse of experts as a direct result of a perceived undervaluing of social work expertise. Cohen's research used the example of a court where partnership working and giving greater status and value to the evidence of social workers had reduced the use of expert evidence. Cases in this court took on average 7-9 weeks less than a neighbouring court, which did not follow this approach.
62. Some local authorities and children's guardians also thought that the court process itself was leading to an overuse of experts. They believed that there was pressure on the judiciary to be seen to give the parents every chance of demonstrating that they could look after their children. This in turn led to the court process in effect becoming a rerun of the assessment process which the local authority had already undertaken before bringing the application in the first place. In their view this implied criticism of the local authority case necessitated expert evidence being brought in during the court process. One local authority questioned the validity of the local authority spending time and money on a detailed assessment of the case if the court was going to order its duplication during the court process.
63. While joint instruction and local lists of experts are improving the use of available resources in both public and private law cases, both the research team and the Legal Services Commission have the impression that expert evidence is coming to be regarded almost as routine in both jurisdictions. The Commission is undertaking more work on this area to see if it is possible to deduce evidence for this from disbursements in Children Act cases.
Sufficient numbers of experts to meet demand within a reasonable timescale
64. The shortage of available experts was by far the most frequently cited cause of delay (89% of respondents cited this as a factor, with 60% of all respondents saying it was a major problem). Although the most acute shortages identified were in child psychiatrists and psychologists, a lack of available experts was perceived to be a general problem.
65. There were a number of facets to this problem:
There is confusion as to the definition of an expert with parties and courts wanting to have access to the "best"
In some areas requests for expert evidence remain concentrated on a handful of experts. These individuals inevitably found it difficult to manage an increasing workload, particularly as they were asked to provide reports on cases being heard all over the country.
The reliance on preferred experts makes it difficult for new experts to get court experience
Experts are now being asked to take on the assessment role formerly filled by social workers because of staff shortages within local authorities
The perception of court work, which is seen variously as poorly paid, burdensome, daunting or an irrelevant "add on" to a medical expert's primary responsibilities within the health service. (These issues are addressed below.)
66. What is clear, however, is that even if the practical issues regarding the unnecessary instruction of experts can be resolved, there are simply insufficient experienced experts of the level required by parties and the courts available to undertake reports within a reasonable timeframe: a larger pool is needed. Parties and the courts need to consider, for example, whether they always need a consultant, what does forensic evidence add to the report of the General Practitioner or hospital registrar who may have the most detailed personal knowledge of the child's health?
67. In the higher courts, particularly there may be a need to have particular expertise, particularly if a precedent is being set. A good example here is the work of Drs Sturge & Glaser, which contributed to the landmark case Re: L & Others (14) on the question of the harm which can be done to children when they witness domestic violence. However, there is a question as to whether second and forensic opinions are necessary in routine cases to the extent they are currently being used.
Experts should be sufficiently trained in court work so that their reports are relevant, complete and focussed on the issues for resolution
68. The quality of expert reports was not raised as an issue of fundamental concern during the course of our study. However, the lack of support and training currently available may act as a disincentive to new experts coming forward to do court work. The medical profession also recognise the risk of court work being seen as an "add on" or as one expert has said "money for old rope". For example, there were reports of expert evidence being given on paper alone, with no contact at all with the family. This adds to the concern that forensic expert evidence is being sought routinely with inadequate consideration of the added value it will bring to the consideration of the case.
69. The medical profession has established a working group to look at the feasibility of a Medico-Legal College. The College would seek to train medical experts in report writing and giving evidence to the court. The Bond Solan Expert Witness Training issued a survey on the use of Expert Witnesses, which indicated that, while approximately 75% of professionals did not wish to see an accreditation scheme in place, they acknowledged the need to receive training. While there is no evidence to suggest at this stage that an accreditation scheme for expert witnesses is required, initiatives such as the College offer a way of encouraging new experts into court work, giving them the skills and confidence to make an effective contribution.
Instructions to experts should be clear, timely and specific
70. Despite the availability of guidance on this subject, poor and late instruction of experts added to the pressure on them to produce reports to the timescale ordered by the court. Some experts felt that the issues for resolution could have been identified earlier and agreed upon without the need to attend court, but the lack of clarity of instruction meant this was difficult. The research team also found anecdotal evidence that requests for experts were not sufficiently focused on the relevant issues in individual cases.
Court procedures should ensure that the best use is made of experts' time, especially at court.
71. Some experts perceive a lack of respect for and understanding of their role. Despite the existence of guidance on the subject, experts were still being asked to make themselves available for a number of days for the final court hearing, without any recognition of the pressures on their time. When they did attend court they could be left waiting around for some time with no indication on when they were to be called on.
72. One clinic said that it would no longer undertake court work once an experienced expert witness moved on because it could not spare the resources needed to deliver other priorities, especially if these precious resources were not used wisely.
73. This poor treatment may be a contributory factor in the perceived shortage of available experts as experts will no doubt communicate their experiences to colleagues. This may create a vicious circle in which the available experts become more pressured because there are fewer of them, but this pressure makes the work appear even less attractive to potential future experts.
74. The President of the Family Division's Interdisciplinary Committee initiated a survey of the views of designated family judges on the use of experts. The responses to this exercise largely accord with our findings. They suggested the need for a more fundamental look at how experts are used in family cases, particularly with regard to how they are being used to add value to the assessments undertaken by primary health care professionals and social services.
75. The evidence gained from this study suggests that the most significant problem in this area is too great a demand for the services of a small number of highly qualified experts. The two principal areas to be addressed are:
only permitting expert evidence to be supplied where it is necessary in the interests of a fair outcome
tapping into the wider pool of available expertise
What has been done?
The decision as to whether expert evidence is to be allowed is for the judiciary as part of their case management role. An interdisciplinary conference, including members of the judiciary, legal profession and medical experts, was held in June 2001 with the support of Lord Justice Thorpe and Mr Justice Wall to address this problem. This was followed up by the President of the Family Division's Interdisciplinary Conference in September 2001. These conferences heightened judicial awareness of the need to ensure that expert evidence must be both necessary and, if required, of a level commensurate with the needs of the case.
This will be followed up as part of the work on case management and training with the objective of implementing best practice next year.
Matching the Judge to the Work
76. The court structure underpinning the Children Act 1989 was designed to ensure a flexible system in which Children Act cases would be heard:
at the level of court commensurate with their complexity
by judges, magistrates and justices' clerks specifically trained to deal with family cases efficiently, effectively and sensitively
as quickly as was consistent with the welfare of the child.
77. The study team was asked to look at two areas specifically in relation to jurisdiction, whether:
there was a case for enabling more work to be handled by district judges
a requirement that all freestanding (i.e. non divorce related) private law cases should commence in magistrates' court would reduce perceived problems in a deterioration of magistrate expertise and consequently reduce delay and pressure on the county court
Current distribution of work between tiers of court
78. It was originally envisaged that approximately 75% of public law cases would be heard at magistrates' courts with 25% in the higher courts. The same percentages were not envisaged for private law matters, because a large share of private law applications arise in the context of divorce proceedings in which magistrates' courts have no jurisdiction. In addition applicants in private law proceedings currently have a choice as to where they issue proceedings, although in publicly funded cases applications should be made to the lowest tier of court commensurate with the complexity of the case.
Applications by tier of court in public law cases
|
1996 1997 1998 1999 2000 |
FPC 13,354 14,971 14,054 17,036 15,657 |
% 83 83 81 86.5 71 |
County 2,571 2,850 3,115 2,623 6,181 |
% 16 16 18 13 28 |
High 141 151 115 111 162 |
% 1 1 1 0.5 0.75 |
Applications by tier of court in private law cases
|
1996 1997 1998 1999 2000 |
FPC 32,549 35,120 32,718 33,118 25,263 |
% 30.5 34 28.5 36.6 26.5 |
County 73,339 67,996 81,611 56,897 69,852 |
% 69 65 71 63 73 |
High 404 219 219 366 292 |
% 0.5 0.25 0.25 0.25 0.25 |
Figure 3. Workload Distribution between tiers of court
79. Despite concerns about pressure on the county court, the percentage of applications made to each tier of court in public law cases remained fairly consistent until 2000. (There are concerns about the validity of these figures given the sudden rise in county court work.) After taking into account transfers (see Figure 5) family proceedings courts deal with about two thirds of public law cases (again this does ot hold true for 2000).
80. Even minor changes in transfer rate when combined with some of the fluctuations in workload identified in the section on workload trends above can have a substantial impact on delay. For example according to the statistics, in 1998, the county court faced a combination of an increased private law volume, together with a higher than usual transfer rate from family proceedings courts in public law cases. When these workload changes have not been anticipated there is an inevitable time lag between the receipt of the work and the resources available to deal with them.
81. Some of the delay in Children Act cases can be attributed to this fairly simple mismatch between caseload and available judiciary.
The role of the family proceedings court
82. It has proved difficult to establish exactly what is happening in family proceedings courts because of a lack of consistent management information.
83. There are no figures on the number of family panel members available or the days sat on family. The samplers in public law Children Act cases, which are supposed to be completed to provide regular information on the time taken in public law cases, were not always available and in some cases the information supplied was unreliable. We were advised that the quality of the data held centrally on the work of family proceedings courts was too inconsistent to be reliable. We have therefore had to rely a good deal on anecdotal evidence supplied by family proceedings courts themselves and the other agencies using them.
84. A thematic review of the work of family proceedings court was undertaken by the Magistrates Courts Service Inspectorate (15) in 2001, which corroborated the bulk of the scoping study's findings.
85. Our study focussed on the following key questions with respect to family proceedings courts:
do magistrates have sufficient work to enable them to maintain their expertise in family cases
are cases being heard at the right level of court
is there anything about the processes operated in family proceedings courts which contributes to delay, especially in the operation of the transfer criteria
86. The issue of transfer was specifically raised in Dame Margaret's report. For example, Dame Margaret saw the need for cases to be transferred down if complexities resolved themselves. This has been addressed in changes to the Children Act (Allocation to Judiciary) Directions 1991, although the provisions are rarely used (see paragraph 100 below).
Maintaining magistrates' expertise
87. To enable them to deal effectively with family work magistrates need to have sufficient family work to enable them to maintain their expertise. The Magistrates' Association and Justices' Clerks Society fear that a fall in work is threatening the ability of some magistrates to fulfil this requirement. They advocate a requirement for all free-standing (i.e. non divorce related) private law cases to be commenced in magistrates' court to deal with this problem. Some family panels have already amalgamated in recognition of the need to band together, not only to maintain expertise but also to enable magistrates to be available to deal with longer cases. This seems to be having an effect in terms of the reducing number of cases transferred on the grounds of length of hearing (See figure 5 below).
88. While 1998 saw a drop in public and private law caseload in family proceedings courts on the previous year, the public law 1998 workload was still in excess of 1996 levels and has grown since. On private law the picture is more mixed with 1999 seeing record levels of private law work handled in magistrates' courts and 2000 a slump of over 8,000 applications.
89. Family proceedings courts continue to deal with the bulk of public law work and deal with it well. The appeal rate for family proceedings courts is low with only 15 appeals heard in the High Court in 1999, of which 8 were allowed. Although statistical evidence on magistrates' courts is not totally reliable, the information available does tend to suggest that magistrates' courts usually dispose of public law cases more quickly than county courts. For example, the national average in 1998 for completed returns was 14 weeks quicker. It should be said, however, that given that family proceedings courts are dealing with the simpler cases then a shorter disposal time should be expected.
90. It is true that transfer rates from family proceedings courts to the county court on the grounds of complexity have grown over the years. However, this is not unexpected given the rising workload and the proportion of cases transferred on these grounds has not changed substantially.
91. What did become clear from our research was that the plea for additional work was by no means a universally held view in the magistrates' courts service. Family work is currently dealt with in over 300 centres. For some of these courts this means a workload of only a handful of cases a month. Some magistrates' courts, particularly at smaller centres, said they were feeling the pressure because of the demands made on them to meet targets in criminal justice generally and youth justice in particular. There was perceived to be a real tension in trying to maintain expertise in a number of jurisdictions. The issues here did not only concern the availability and expertise of magistrates but also the staff expertise, resources and systems needed to run family business effectively. This does not necessarily indicate a general lack of capacity in the magistrates' courts service as a whole, but is an indication that not all courts, particularly those who deal with very small amounts of family work, find it easy to balance the needs of a disparate workload effectively. This point was reinforced by the Magistrates' Courts Service Inspectorate's thematic review of family work.
Commencing all free-standing private law cases in the magistrates' court
92. As many magistrates' courts deal with complex public law cases effectively it seems sensible to ensure that straightforward private law cases are also dealt with at the lowest tier of court possible. However there are practical issues which need to be taken into account.
Workload
93. Assuming similar transfer rates as in public law cases, requiring all free-standing private law cases to start in the magistrates' court would involve an approximately 50% increase in private law workload for family proceedings courts. However, this workload would be spread over 300 courts of varying sizes and catchment areas and would therefore have a varied impact on the service. For those courts doing only a handful of cases a month the national private law volume change would make little difference and have limited potential to ensure that cases were dealt with by magistrates with sufficient expertise. However, there is a potential substantial additional burden for larger centres and therefore the possibility that jurisdictional change could actually increase delay in the short term.
94. This study therefore concluded that free-standing private law cases should not be required to start in family proceedings courts unless there was a rationalisation in the number of centres handling family proceedings. This would ensure a better balance between local access to justice and maintaining sufficient specialist expertise among magistrates, justices' clerks and staff. This workload issue should also be seen in the wider context of magistrates' court work, for example the recommendations of Lord Justice Auld's report on the criminal justice system.
Access to justice
95. The Court Service and the magistrates' courts service are working together to look at the better joint utilisation of court estate. This is providing both services with an opportunity to look more strategically at the distribution of courts with family jurisdiction and provide a better balance between the competing requirements for specialist expertise and the flexibility to meet changing workloads.
96. To date we have tended to view access to justice in family cases as referring primarily to local justice. However, this has perhaps not adequately acknowledged the impact of a lack of expertise and the ability to list cases effectively. Many small magistrates' courts only sit on family proceedings for a limited time each week given their small workload and the competing demands of criminal and civil matters inevitably impact on their ability to list cases quickly. A change in jurisdiction to require applicants to commence family free-standing private law applications in family proceedings courts is unlikely to change this.
97. Both this study and the Magistrates' Courts Service Inspectorate thematic review suggest that those courts dealing with family work are spread too thinly to maintain staff as well as magistrate expertise and to justify the investment in systems and training which would meet the demands of an efficient specialist service. Some courts admit they are not entirely suited to family work. For example it is difficult for some to keep parties in family cases entirely separate from those involved in criminal proceedings which may well be a disincentive to families using the magistrates' court. Realistically significant improvements in expertise will only come about if there is a rationalisation in the number of locations where family proceedings courts are held.
What is being done?
The Estate Review, jointly conducted by the Court Service and magistrates' courts service, is providing the opportunity to deliver a better match of courtroom accommodation to need.
The Magistrates Courts Consultative Council has been consulted on the issue of a rationalisation of the number of centres dealing with family work. This issue will be examined in the light of Lord Justice Auld's report on criminal justice.
The Magistrates Courts Services Inspectorate thematic review has provided a basis on which to develop performance indicators for family work in magistrates' courts.
Are cases being heard at the right tier of court?
98. 62% of respondents to the study thought that cases were currently being heard at the right level of court. However a number of respondents thought that cases were being transferred up when they could have been dealt with at a lower tier. This echoes the findings of Dame Margaret Booth.
99. A number of the judiciary felt that cases were being transferred up on grounds of length of the case or because there were a number of witnesses, when the issues to be resolved were actually quite straightforward. One designated family judge suggested that justices' clerks should be encouraged to discuss transfers with the local designated family judge, especially where they were unsure. District judges in particular thought that some private law cases could be more appropriately dealt with in family proceedings courts. One senior judge suggested that all divorce cases should be required to start in family proceedings courts.
Figure 5 Transfers Figures(analysed during the original study period)
|
PUBLIC LAW CASES Transfers from family proceedings court to county court Length of hearing Complexity Consolidation Urgency Total Total transfers from county court to family proceedings courts |
1996
121 1702 410 134 2367 17 |
1997
119 1928 144 95 2286 19 |
1998
88 2054 403 176 2721 38 |
|
PRIVATE LAW CASES Transfers from family proceedings court to county court Length of hearing Complexity Consolidation Urgency Total Total transfers from county court to family proceedings courts |
1996
123 1122 529 115 1889 123 |
1997
121 1288 488 172 2069 113 |
1998
101 1297 471 172 2041 142 |
100. The provision to transfer cases down from the county court to the magistrates court remains rarely used. Nationally only 74 public law cases were transferred down in the three years examined in the study, and, if the statistics are to believed, Northern Circuit only transferred down one case in three years. The position in private law cases is similar, with around ten times as many private law cases transferred up to the county court on the grounds of complexity over the last three years than have been transferred down to family proceedings courts in total.
101. The reason for county courts not transferring down cases once they became more straightforward was largely given as administrative grounds, in that once progress was being made on a case courts took the view that to transfer down would be to increase delay. Similar arguments were made in relation to transfers from the High Court to the county court, where there is the provision to release cases to experienced circuit judges under section 9 of the Supreme Court Act 1984 in any event.
What reasons are given for cases not starting in magistrates' courts?
What reasons are given for cases not starting in magistrates' courts?
102. The view given was largely dependent on the agency responding. Local authorities and children's guardians tended to regard magistrates' courts as efficient and effective. A contrary view tended to be expressed by the legal profession and the judiciary who thought that magistrates' courts could be slow and sometimes lacked case management skills. It was also noted that family proceedings courts did not sit every day so that local justice could sometimes equal a delay in access to justice.
103. There is some evidence to support both these points of view. As noted in paragraph 89 above, magistrates' decisions are rarely appealed and cases tend to be disposed of more quickly. However, the time taken between application and the decision to transfer does suggest that there are case management problems in some family proceedings courts. The national average in 2000 was 10 weeks with figures varying from 1 week to nearly 33 weeks. This was supported with specific examples given in the course of the study, including one case mentioned by a district judge where a family proceedings court had held on to a case for months before making the decision to transfer. The district judge had effectively had to start the case all over again as no real progress had been made to identify the issues and commission the necessary additional reports or other evidence.
104. In addition it was noted that there were some differences in practice and procedure which made the magistrates' courts less attractive:
Waiting for magistrates' written reasons
Lack of powers
Allegedly better remuneration for the legal profession in the county court.
Written reasons
105. Magistrates understandably need to take time to ensure that their written reasons are accurately and clearly drafted, especially given that they will be relied upon in any appeal. Although this process has been the result of considerable guidance it inevitably results in parties having to wait around on the day with a consequent waste of time and resources. A proposal made by a number of respondents, which seems sensible, in principle is that the decision made in family proceedings courts should be given orally and in the order with full written reasons to follow, as happens with reserved judgments in the higher courts. This could be subject to a prescribed time limit.
Powers
106. Concerns were expressed with regard to three areas:
Case management
Powers of arrest and imprisonment
Remuneration levels
107. On case management there was concern that justices' clerks had limited powers to enforce case management directions given without referral to a full bench which inevitably took time. Clerks also saw the limitation on magistrates' court powers of imprisonment to a maximum of 6 months as an incentive for domestic violence cases to be issued in the county court.
108. In considering an extension of magistrate or justices' clerk powers in family cases, we must remember that in some cases there is a direct read across to their powers in criminal matters. For example, it cannot be sensible for magistrates to have the power to commit for longer periods in civil domestic violence proceedings than in criminal. Cases meriting consideration of imprisonment beyond 6 months in criminal cases would currently fall to the Crown Court, and unless or until any change is proposed following Lord Justice Auld's review the same arguments should be followed in civil proceedings.
109. There are stronger arguments for ensuring that justices' clerks have the necessary powers to enforce their case management role given the emphasis made by both Dame Margaret Booth and the respondents to this study for the need for firm judicial case management. The specific example given in the course of the study was sanctions for non-compliance with case management directions.
Remuneration
110. Remuneration levels in public and private law cases are broadly similar and are unlikely alone to have a significant impact on solicitors' decision to advise their clients to issue in a higher tier of court. It was more what respondents called the "add-ons" which were perceived to make a difference. For example, some magistrates' courts said that the greater likelihood of being approved to use counsel in the county court would be an incentive for some local solicitors to issue in the higher court. This was likely to be especially true if the firm's work was spread over a number of court centres and so they could not handle all the court work themselves.
111. No respondents identified the fact that magistrates' courts fees are currently lower than in the county court, which should act as an incentive to issuing proceedings at the lowest tier possible, especially as cases subsequently transferred up do not attract any additional fees. Most public law cases and a significant number of private law children cases will involve at least one publicly funded party. Under the Legal Services Commission Funding Code funding should only be granted for a higher tier of court when necessary.
Convenience & Culture
112. For many solicitors divorce cases provide the mainstay of their family work. Given that magistrates' courts do not exercise divorce jurisdiction, it is perhaps unsurprising that for the sake of convenience some solicitors do not appear routinely to advise their clients to issue other private law family proceedings in the county court. This saves on travel time and potentially, it should be noted, cost to the client.
113. There was also what we have called a cultural influence on where proceedings were initiated. County courts were regarded by some members of the judiciary and the legal profession as offering a superior service. As has been noted above there is little substantive evidence, only anecdotes about the odd individual case. However this perception appears to make a difference for some professionals in terms of the court they choose. There were some respondents, again mainly in the judiciary and legal profession, who simply did not believe that magistrates should deal with family matters at all.
114. The two exceptions to this rule were the full time district judges (magistrates' courts) nominated for family work and Wells St family proceedings court which is widely regarded as a centre of excellence. Wells St is the only magistrates' court in England and Wales which deals solely with family work and it is precisely this specialism which has enabled it to develop judicial expertise and administrative and case management structures to support it. It also remains the only court in the country to which significant work is transferred from the county court, although even here most of the cases transferred down relate to domestic violence rather than Children Act matters.
115. The recommendation of this study that family proceedings courts should be rationalised to support the development of greater judicial and staff expertise would, we believe, go some way to reducing the stigma attached to family proceedings courts.
What has been done?
A working group of district judges (magistrates' courts), magistrates and, justices' clerks chaired by His Honour Judge Cryan has recently submitted a report to the Lord Chancellor's Department suggesting ways of tackling these issues. Their recommendations include draft Rule changes which would address the issue of magistrates' court powers and enable judgments with reasons to be given orally, with written reasons to follow within a specified time.
The working group has also suggested that practice in the magistrates' courts could be improved if the Practice Directions made by the President of the Family Division were made binding on magistrates' courts. Currently the President's Practice Directions do not technically apply although the principles contained within them are often followed in practice. The Lord Chancellor's Department is sympathetic to this suggestion, but such a change would require an amendment to primary legislation and so will depend on a suitable legislative vehicle becoming available.
The report of the working group will be published alongside the Lord Chancellor's Department's response to the group's recommendations.
See also Family Justice Council [p62]
Administrative arrangements for transfer
116. Dame Margaret's report identified late transfers and poor administrative arrangements as a further cause of delay.
117. Although there must be a question mark over the validity of these figures, the statistics we do have on the average time taken between application and transfer suggests there are grounds for continued concern on the first of these points. The average time taken between application and transfer of a case was over 9 weeks in 2001 with large regional variations - one court showed a figure of over 40 weeks.
118. 60% of respondents to this study agreed that there was room for improvement in the arrangements for the transfer of cases. We were told of examples where cases were transferred without any prior warning and without cases papers which meant that courts were delayed in dealing with cases or effectively had to start all over again. This was true of cases being transferred to as well as from magistrates' courts.
What has been done?
The transfer criteria are being reviewed to ensure that:
The question of transfer is dealt with early
There is greater consistency
There is better use of the provision to transfer cases down to magistrates' courts.
JURISDICTION IN THE COUNTY COURT
119. In the county court family work is dealt with in designated care and family hearing centres by judges who are specially nominated for family work. As in magistrates' courts there is a need to ensure that judges nominated for family work deal with sufficient cases to maintain their expertise, but are not so overburdened with a limited range of work that flexibility is lost.
120. Dame Margaret was concerned that, while the existing arrangements promoted the principle that family work should be dealt with by judiciary with sufficient expertise, it was too inflexible to deal with cases efficiently. She recommended that there should be reviews of:
the family jurisdiction to increase flexibility and to ensure that a limited number of judges were not relied upon to deal with what are often stressful and upsetting cases
the administrative arrangements underpinning the way family judges are nominated for family work or "ticketed" to reduce delay in the appointment of judges and to ensure that tickets were removed from those judges who did not actually sit on family work.
Judicial Numbers
121. The scoping study looked at the sitting days allocated to family work in the period since Dame Margaret Booth's report. The days allocated to family work had remained fairly consistent, although an unexpected peak in private law Children Act applications in 1998 was not accounted for. There is therefore sometimes a simple mismatch between the workload and the judicial resources available to deal with it.
| Sitting Days (Public) | Sitting Days (Private) | Total Sitting Days | |
| 1996 | 8296 | 29894 | 38190 |
| 1997 | 8910 | 29121 | 38031 |
| 1998 | 9927 | 28422 | 38349 |
Figure 4 Sitting days examined in the study period
122. 52% of respondents thought that the lack of available judiciary in the county court was a major factor in delay and a further 29% considered this to be an occasional problem. This was not necessarily solely an issue about numbers, but how those judges were used. In terms of judicial availability a number of key problems emerged:
The mismatch of timing between the judicial nomination and training process can lead to delays in newly nominated judges being able to sit on family cases
By contrast to the concerns about magistrates' loss of expertise, some care judges have too much work. This unrelenting diet is stressful, limits the judge's ability to maintain expertise on other areas, restricts the Court Service's ability to meet changes in workload and can cause severe listing problems when a judge is off sick or otherwise away from the care centre.
A number of family hearing centres dealing with private law work do not have circuit judges sitting all the time. This can mean a delay in listing cases or transfer of cases to neighbouring centres
Some judges hold family tickets which they do not use providing the senior judiciary and the court management locally with an inaccurate picture of the judicial resources available.
There are delays in the appointment of certain key judges which has an inevitable impact on a court's ability to list cases quickly
Appointing new judges
123. The procedure for the appointment of new family judges which Dame Margaret criticised for its slowness was regarded a vastly improved since the system was revised in 1998. Nominations are now made twice yearly which ensures that changes in need can be accounted for more quickly.
124. However, the "pool conference course" which newly nominated family judges must attend before they can sit on family work only takes place once a year. A number of respondents mentioned that it can sometimes mean a judge waiting nearly 12 months between being nominated for family work and actually being able to sit. Given that judicial nominations are reviewed twice a year a number of respondents thought the course also needed to run twice a year with the timetable fitting with that for nominations. Another suggestion was that some of the course material could be covered locally so that nominees could be used on limited work until the next course became available.
What has been done?
The Judicial Studies Board has considered the possibility of running two pool courses per year. However this is impractical in terms of numbers given that this is an intensive course, on which a significant number of outside bodies are involved. The intention behind the pool course is to train those likely to be appointed as family judges in the future . the emphasis in the future will therefore be on more effective advance planning to identify future needs so that training can take place at a more appropriate time.
Overloading of nominated care judges
125. There has been some confusion as to the percentage of time those judges nominated for family work are expected to sit on such cases. The majority believe judges nominated have to spend a total of 25 % of their time on family work (public and private) whereas others understood that those nominated for public law had to spend 25% of their time on public law work at least with a further 25% on private law work.
126. Judges nominated for public law work are likely to need to spend 25% of their time on such work to maintain their expertise. The same percentage is likely to apply for those doing only private law family work. However separate minimum periods for both public and private law work are unlikely to be necessary for those nominated to sit on both types of case. This is because the principles underpinning both private and public law work are the same, for example that the child's welfare is paramount.
127. There is also a need to ensure that there is a pool of circuit judges in reserve who can be brought on stream quickly in the event of the retirement or illness of any of the existing complement.
128. However, our study identified a number of instances where judges were spending considerably larger portions of their time on care work. Given the stress of care work and the need for the judiciary to maintain their ability to deal with other types of cases, we believe there should be a limit on the amount of public law work that judges are asked to do. We would suggest 75% should be an absolute maximum and that this figure may need to be lower. It may be that such a maximum will require the nomination of additional care judges.
129. While some judges were concerned at having too much family work, others did none at all. Despite the recommendations in Dame Margaret Booth's report that tickets should be removed from those family judges who did not do sufficient family work to maintain their expertise, we found more than one example of a circuit judge with a public law family ticket who did not do family work. In one case, did not sit at a court with public law jurisdiction. There is anecdotal evidence that this applies to other family tickets. This means that training resources have been wasted and that the senior judiciary and court management locally have an inaccurate picture of the resources they have available to deal with family work. There were also examples of judges holding so many tickets that they could not possibly hope to exercise all of them.
130. The problem for the President of the Family Division and the Family Division Liaison Judges in providing recommendations to the Lord Chancellor on which judges should be nominated for family work is that there is little formal scrutiny of how tickets are used. Only two areas had any systems for monitoring the operation of family tickets.
What has been done?
The President of the Family Division has been consulted on recommended minimum and maximum amounts of time for nominated family judges to spend on family work. The Court Service will be monitoring sitting patterns to ensure that the senior judiciary are advised when judges nominated for family work may be doing either insufficient sittings to maintain their expertise or are not having sufficient opportunity to maintain their expertise in a second discipline. It will then be for the senior family judiciary to recommend to the Lord Chancellor either the removal of a ticket or of the names of additional nominations.
District Judge Jurisdiction
131. Dame Margaret Booth advocated an expanded jurisdiction for district judges in private law matters to enable more of such work to be delegated to them thereby freeing up circuit judge time for public law cases. While private law family work appears to be falling, such a change could go some way to alleviating this problem, as rising public law workload is increasing the pressure on circuit judges.
132. During the course of our study we were told of a number of examples of district judges being nominated for the ticket which enables them to deal with public law matters and contested private law matters solely to obtain the private law jurisdiction which is where they were needed. This included nominating district judges who sat principally at centres dealing only with private law work as a number of such centres have no circuit judge continuously available. This has meant that training resources at the Judicial Studies Board and the time district judges have been released to attend public law courses has been largely wasted.
133. Some parts of the country have also expanded the number of deputy judges or recorders nominated for family work, which also indicates the perceived pressure on circuit judges dealing with family matters. Having a private law only ticket for district judges would free up circuit judge time and so increase flexibility for listing officers and reduce delay.
134. What has been done?
A new "ticket" has been introduced enabling district judges to be nominated for contested private law work.
The appointment of designated family judges
135. Designated family judges have responsibility for the management of family work in their court centre. In addition they chair local Family Court Business Committees. These committees are designed to bring together all those involved in managing children's cases locally to identify local problems and devise solutions. Dame Margaret Booth regarded the appointment of the designated family judge as key to the effective handling of Children Act work.
136. Our study looked at three care centres where there had been no designated family judge for some time. This absence had a clear impact on delay, not only in the loss of available sitting days but also the lack of any leadership in the court. We understand that one of the courts consulted during the study was without a designated family judge for ten months in total. The High Court Judge for the area has taken on additional sittings in the area to cover the gap. We were also told that one designated family judge was also asked to take a management role on criminal cases, which had a major impact on both his workload, and the time he was available to devote to either area of business. Since the study was completed another court has had no designated family judge for two years and now has the longest waiting times in the country.
137. To a certain extent there was perceived to be a vicious circle with the overloading of designated family judges responsibilities deterring potential nominees for these posts.
138. Designated family judges are appointed only in care centres. There is no consistent equivalent judicial leadership in family hearing centres or in family proceedings courts. This was perceived to be a further weakness in the current arrangements as it meant there was a missed opportunity in terms of promoting consistency of practice across all those courts linked onto any particular care centre.
What has been done?
The President of the Family Division is being consulted on the development of a job description of designated family judges.
Case Management
139. The Children Act 1989 laid the foundations for pro-active case management in children cases. This was not a novel concept because judges in wardship cases had previously exercised close control of cases. Notably the Act introduced a wider expectation that the various stages of all children cases would be timetabled and that the courts would exercise control in order to make these timetables work.
140. In this way, the principle that delay may be harmful to the welfare of the child would be applied at ground level throughout in the courts. This was to mean not only control by the judges but also control by other participants in children cases. Parties, lawyers, children's guardians, and experts would all be expected to comply with set timetables. This would play a major part in providing the operational framework into which the new Act would slot.
141. The timely disposal of Children Act cases depends on the co-operation and prompt contributions of all those involved in each case, including the parties, their legal advisers and those called in to provide expert reports. The judges in each case have the key roles of:
identifying the issues to be resolved
identifying what additional information is required to reach a fair decision in the best interests of the child
setting and enforcing the timetables for each case.
142. The process by which cases are handled from application to final order is called case management.
What is the Precise Definition of Case Management?
143. While case management is a term frequently used to describe the process by which cases are handled, there is no precise definition. Over the last 10 years a set of basic operating principles have evolved through practice and experience and these form the core of what is now referred to as case management.
144. Those interviewed explained the principles of case management quite differently. Some had a fixed set of notions and practices in mind and evinced clear summaries of how they expected it to work. Others referred to what they actually did, when and why. A further group were less obviously focused in what case management might actually entail and were not at ease in articulating what was expected of them. There did not appear to be a shared or consistent picture with regard to the principles underpinning case management which may partially explain the very different statistics on the time taken to deal with cases.
Defining Principles
145. Public and private law children cases are based on similar operating principles. The list that follows contains the most prevalent and most frequently cited basic principles:
Definitive leadership and overall control of cases by judges but
A notion of partnership and effective partnership working amongst players and
Robust and pro-active participation in moving the case forward by all key players in individual cases
Accepting collective and individual responsibility for case management
Allowing for the dynamics of families and therefore children cases to evolve and change but recognising these shifts as early as possible
146. Dame Margaret Booth suggested a list of key elements of effective case management in her 1996 report. All of these principles were reflected in the interviews conducted for the 2000 study:
Early identification of the issues to be resolved
Identifying the right tier of court at the earliest stage
Identifying what additional information is needed in order to reach a fair decision in the best interests of the child
Limiting leave for assessments, additional evidence and the joinder of additional parties as far as is consistent with a just outcome
Being precisely focused on both the need and the extent of this additional information and making arrangements for its commission promptly
Directions appointments should be listed with adequate time to identify the issues and the areas on which further information is required and be staggered rather than listed all at the same time, with judges having the necessary time to read the papers
Setting and enforcing the timetables for each cases and not diverting from them without sound and explicit justification, considering wasted costs orders where parties fail to comply with direction without good reason
Ensuring that these timetables are realistic, achievable and have been set after consultation with other key players
Early and advance fixing as many hearing dates as possible, including a pre-trial review to ensure cases are ready to proceed to a full hearing
Promoting consistency of approach by limiting the number of changes of personnel handling cases, especially within the judiciary Reserving cases to the same judge wherever possible
147. Dame Margaret's recommendations have been the subject of guidance through practice direction and case law, in addition to the Best Practice Handbook produced by the Children Act Advisory Committee.
Skills
148. But an additional element which has less frequently been mentioned are the skills required to make this process happen. Case management is frequently seen as a process, but it is a process which requires developed management skills, in setting the objective to be achieved, managing the contribution of all those people involved and ensuring the resources are available to complete the task, especially that most important resource time.
Scoping study findings
149. The scoping study found the position largely unchanged since Dame Margaret's 1996 report. Factors identified as major or occasional problems in the management of cases were principally:
Poor enforcement of timetables and timewasting 57%
Inadequate time for preparation 55%
Inadequate and late disclosure 55%
Courts not keeping to time on the day 55%
More than one judge hearing the case 49%
No early identification of the need for assessments 48%
Inappropriate/unrealistic timetabling 47%
150. No court in our study had managed to tackle all of these issues successfully.
General issues
151. Judges dealing with Children Act cases face a real tension between reducing delay and ensuring that there is a just resolution to proceedings given the importance of the issues at stake. Where an expert report is late it is virtually impossible for a court to proceed in its absence if it has a material bearing on the outcome. We have to acknowledge that case management improvements have their limitations.
152. In addition there may be practical limitations to effective case management. One practice which is said to enable courts to list more cases effectively is "back to back" listing where two family judges sit simultaneously. Not all cases which are listed for hearing actually go ahead, but it is risky to overlist if only one judge is available. . Back to back. listing enables more than two judges' work to be listed at the same time with less of a risk of cases having to be stood down. However, not all centres have the court accommodation or indeed the judges available to operate such a system. It must also be said that "back to back" listing can mean that judicial continuity is broken and that parties may have a longer wait. There does not appear to be one perfect system which fits the particular circumstances of every court in the country . whether this be because of accommodation issues, judicial complement or most importantly convenience to the parties. One size does not fit all.
153. However, case management has a vital role in limiting the effects of resource pressures in ensuring that:
the issues for resolution are identified early
expert evidence is only ordered when necessary and is limited in scope as far as possible
timetabling is realistic, takes into account the needs of all those agencies involved in the case and is enforced
154. At some courts in our study agencies complained that dates were being fixed without prior consultation, which sometimes led to adjournments or the rescheduling of other important work. Some courts are still not timetabling directions appointments and hearings for fixed dates which can also lead to diary clashes and adjournments, particularly where experts have not been consulted. Some courts are still block listing directions appointments (that is to say listing a number of cases as all due to start at the same time) to the extent that parties are having to spend a considerable amount of time waiting around at court. All of these practices lead to delay and in many cases could be changed, although some block listing of short appointments is essential to ensure judge time is properly used. In addition such practices would make it much more difficult to involve children directly in hearings.
A different approach for private law matters?
Reducing delay versus achieving settlements
155. While there was broad agreement that public law cases should be the subject of rigorous case management, there was a clear (if not completely unanimous) difference of view as to the arrangements which should apply in private law cases. There was a general consensus that there was a role for "constructive delay" in private law cases. This was delay for a positive purpose, for example, to give parents the opportunity to work out agreed arrangements for the future care of their children, whether this be alone or more usually with the help of a mediator (or mediation focussed solicitor) or CAFCASS officer. Where courts held statistics there was evidence that 60-70% of cases settled through some form of mediation/conciliation.
156. This accords with the findings of Davis & Pearce's (16) research on the Children Act. Davis & Pearce perceived a tension between the requirements of the Children Act to minimise delay with the accepted wisdom that a mediated or other settlement must be better than a trial. Their research described directions appointments as " negotiating opportunities" and dates by which it was hoped "something might have happened" rather than being used to press ahead with a timetable and in family proceedings courts, they saw little case management at all.
157. Their findings suggested that private law cases either settled very quickly or were prone to protracted delays because judges would rather allow further time for an agreement to be reached than impose an order on the parties. Interestingly some of the parties spoken to in the course of the research said they would have welcomed being told what to do as a way of helping both parties come to terms with the situation.
158. In these cases the eventual "settlement" was rather more the result of "attrition" or of barristers at the door of the final hearing thrashing out a compromise satisfactory to them if not the clients. The study "Families in Conflict" suggests that arrangements agreed at the door of the court were the least satisfying for the parties. Our study identified that this high settlement rate caused difficulties for the court, particularly where settlements were made late in the day. Even where courts were fixing pre-hearing reviews as recommended by Dame Margaret Booth, settlement at this late stage could mean that courtrooms were freed up too late to make any substantial use of them.
159. Davis & Pearce also noted that, unlike public law cases, the concept of a final hearing was meaningless in private law matters as in effect the case stayed "live" until the children no longer came within the Children Act definition of a child.
"Constructive" delay versus case drift
160. Set against this perceived need for . constructive delay. , the scoping study, like the Davis & Pearce research, saw evidence of drift in some private law cases. One directions appointment observed concerned a case where little progress had been made for a year and the lawyers concerned still did not even seem to have a clear understanding of what their clients sought to get out of the process. While there may be arguments for allowing the parties time in private law cases, this does not remove the obligation on the judge concerned to be proactive in ensuring that the issues for resolution are clear and that the parties are actively working towards a settlement. Without such management these cases will carry a cost both to the parties and the public purse. In particular such drift can be enormously distressing for the children who are left in limbo as a result.
161. The best model seemed to be that at initial directions the parties were given a period in which to attempt to mediate a settlement. In effect mediation was undertaken in the shadow of the court with the clear inference that if the parties could not agree a settlement then this would be imposed upon them. This arrangement was seen to work best if a CAFCASS officer was present at the initial directions appointment to support the families in reaching an arrangement, although this raises the question as to whether an agreement reached in this way is an entirely voluntary process.
162. While the Children Act specifies that an order should not be made in proceedings unless entirely necessary, some CAFCASS officers and judiciary felt that making an interim order as to contact and residence gave the parties some reassurance during the process of mediation. Again this is a message which echoes the findings of the Davis & Pearce research.
Improving Case Management
163. The difficulty in this area is designing a case management system that actually delivers. It was recognised by all concerned that:
active judicial case management takes time and resources to get right (this means staff and agency as well as judicial time and also the necessary courtroom space)
any system needs to be flexible given the number of agencies involved
one size does not fit all in family cases, families are diverse and so are their needs.
164. This study explored two areas specifically in relation to case management.
Fast tracking
Existing case management protocols
Fast tracking
165. There was a general consensus that effective case management should obviate the need for fast tracking. However there were reported instances of clear priority cases which respondents thought had not been managed effectively: for example, one case involving a baby, which had taken 9 months.
166. Whilst this list is not exhaustive three categories of case were identified as needing priority attention:
Babies
Cases where siblings of the child concerned had already been the subject of recent care proceedings, where significant evidence might already be available and only short reports required
Concurrent private law proceedings which might produce solutions which removed the need for formal care proceedings e.g. application by a grandparent for a residence order.
167. However, there may be limits on the speed with which even cases involving babies can be progressed depending particularly on the expert evidence required and the complexity of the issue to be resolved.
What has been done?
All county courts have been surveyed to collate best practice protocols and listing practices to see if it is possible to distil best practice. A good deal of consistency has been identified which could help support judicial training. The results of this work will be fed into a seminar in Summer 2002 which will bring together representatives of all the key agencies involved in dealing with children cases. The aim will be to disseminate best practice and build it into the training of all those involved.
|
Example private law protocol: - Pre-application/petition stages are covered by a pre-action protocol which requires the solicitor to consider whether the relationship has irretrievably broken down, consider referral to other forms of assistance whether this be counselling or mediation, screen for domestic violence, adopt a non-adversarial and open approach (This approach is advocated by the Law Society's Family Law Protocol launched on 7 March 2002) - the parties file parenting plans either as part of the statement of arrangements for children required in divorce proceedings or as separate to/part of a Children Act application (a standard parenting plan developed by a working group led by the National Council for Child Care Voluntary Organisations and funded by the Lord Chancellor's Department was launched on 19 March) - an initial directions appointment as to the interim arrangements for the child with directions for mediation/conciliation and any other evidence necessary - a period to allow for mediation/conciliation - a dispute resolution appointment (similar to that now part of procedure for ancillary relief cases). The Protocol suggests this is before a different judge to the one who may deal with the final hearing. - where no agreement further directions as to further evidence/reports necessary - pre-trial hearing before the same judge due to hear the final hearing - final hearing |
The effectiveness of this approach will be monitored, and it is intended will form part of the work of a new Family Justice Council [p62]. The Council would have the potential to disseminate best practice nationally.
The Children Act Sub-Committee of the Lord Chancellor's Advisory Board on Family Law has published their report on . Making Contact Work. . This includes recommendations on facilitating contact. The Government is considering the recommendations of this report carefully and will respond in due course.
A working group led by His Honour Judge Allweis has examined the operation of section 41 of the Matrimonial Causes Act 1973. This is the element of the divorce process at which the arrangements proposed for children are scrutinised. If potential issues of dispute are identified early, it could reduce the number of contested applications for orders under the Children Act later on. A consultation paper will be issued later this year on how best to integrate the arrangements for section 41 with Children Act procedures to ensure there is continuity of approach, with the issues to be resolved early and drift avoided.
OTHER FACTORS CONTRIBUTING TO DELAY
168. By the far the most significant other factor said to cause delay was pressure on resources, particularly in relation to local authorities and court administration.
SOCIAL SERVICES
169. Dame Margaret's concerns in relation to local authorities principally centred on the need to improve social work training along with inter-agency communication and understanding.
170. Significant efforts have been made to improve the quality and efficiency of social services around the country. The Care Standards Act and the establishment of the professional Care Standards Commission in 2002, along the with the Quality Protects initiative, national guidance on priorities to ensure consistency of practice, and the Modernising Social Services White Paper (which sets out policy outcomes for social services departments and encourages inter-agency partnerships) all aim to improve the services available to families and children and encourage consistency of provision.
Recruitment & Retention
171. Our study confirmed that those working in social services departments and their legal advisers were striving to deliver improvements in outcomes for children. However, their efforts were being thwarted in a number of areas by workforce shortages. Vacancy rates quoted by social services departments for children and social work teams were as high as 30% with rates of 25% given more than once in urban areas. While this is a scoping study, which cannot be taken as representing the picture across all of England & Wales, all of the 20 areas we visited mentioned human resource constraints in local authorities as a significant problem.
172. This was not simply a problem in terms of recruitment. High levels of sickness absence, particularly due to stress, were commonly cited as an issue. It was also proving difficult to retain staff, with social workers spending relatively short periods in child protection before moving on to private sector agencies or other posts within social services which were regarded as less stressful. There has been a perceived expansion in alternatives to child protection work which still enable child care professionals to develop a career with children, for example through initiatives funded under Sure Start and the Children's Fund.
173. These schemes, targeted as they are on children at risk, offer a significant means of improving outcomes for children. However, there was concern that there was over fierce competition for a small pool of potential recruits. This is a point picked up by the Chief Inspector of Social Services in her 2000 annual report. (17) A Local Government Association survey in 2000 found that 63% of councils experienced difficulties in recruiting social workers
174. Social workers in some areas also said there was a morale problem, with child protection work regarded as generally unattractive. Social workers were being asked to make life or death decisions with little support financial or otherwise . damned as failing children when they did not intervene and as destroying families when they did.
175. As a consequence other agencies said it was difficult to evaluate the quality of social workers' input because staff changed so frequently. This inevitably contributed to delay, as new caseworkers had to familiarise themselves with the case. Local authorities said that they often had to rely on relatively junior staff undertaking this work, many of them recently qualified.
176. Some social services departments said they felt the need to commission additional expert evidence to support inexperienced caseworkers. This increased cost and delay given the shortage of available experts referred to above.
Trust
177. These recruitment and retention difficulties may be a contributory factor to local authorities' view that the court often regarded their viewpoint as being somehow second rate when compared to that of the children's guardian or experts. This feeling of not being trusted also underpinned local authorities' use of additional experts. A number of local authorities said that courts made little allowance for the inexperience of staff and were quick to criticise and rare to praise, which exacerbated the feeling that social services were under siege.
178. A small number of local authorities stated that a shortage of resources was leading them to abandon best practice for example.
One authority reported it could not undertake the twin track planning of care and adoption proceedings because they did not have the resources
Another said that, given the courts often ordered further assessments of the family as part of the court process, they were restricting the level of their initial investigation, so that in effect they were making applications based on less evidence . this could have a direct impact on the length a case was in the court system
Another said that they consented to family requests for external assessments as part of the court process to give them a breathing space and to relieve the pressure on their resources.
179. All of these practices increased delay and all of the local authorities regretted the steps they felt forced to take to ensure they could maintain at least some cover across their caseload. It is important that local authorities discuss these problems with their designated family judge locally to ensure there is a common understanding of the level of assessment necessary pre-and post-application so that duplication of effort can be minimised as much as possible.
What is being done?
Although the Government does not have responsibility for recruitment and retention of social services staff, as these are ultimately the responsibility of individual employers, the Government is taking a leading role in working with employers to tackle the problems.
The Secretary of State for Health launched at £1.5m social work recruitment campaign in October 2001. The campaign consists of national advertising, leaflets, posters, local and national PR activity, a help line, and a website. It has three aims, to:
Raise the number of people applying for professional social work training by 5000 by 2004.
Inform the public about what social workers actually do.
Improve morale by making existing social workers realise that their work is valued.
The first phase of the campaign went very well. The help line received over 14,000 calls, and the website has had over 11,000 visitors.
A new three-year degree level qualification in social work is being introduced in England from September 2003. This provides a unique opportunity to transform the status, image and position of social workers. The qualification will be based on a prescribed curriculum which will ensure that qualified social workers are rigorously assessed in their practical application of knowledge, methods, research, skills, research and analytical abilities to deliver a service which creates opportunities for service users. The qualification will provide a sound foundation for the registration requirements for the General Social Care Council (GSCC). Social workers registered with the GSCC are expected to have to demonstrate continuing professional development.
In July 2000 the National Training Organisation for Social Care (TOPSS) produced the first comprehensive national training strategy to analyse the skill needs of people working in the social care sector in England and to propose an action plan to improve both the qualification base and the quality of training over the five years from 2000/01.
In April 2001 a new fund was set up by the Department of Health to help with the implementation of the Training Strategy. There was £2 million in this fund for 2001/02 and there will be £15m for 2002/03. It is available to social care employers in the voluntary, private and statutory sectors and it has been used to support and embed Induction Training using the Induction Standards that TOPSS have developed.
The Training Support Programme grant has paid to local councils to help support the training of both their social care staff and the staff of those voluntary and private organisations that are contracted to the council to provide statutory services. There is £57.5 million in the TSP grant for 2002/03. £13 million of this amount is ring-fenced to support staff who are undertaking the Diploma in Social Work (ie becoming a professional social worker). Another £6 million of the grant is ring-fenced to support social workers undertaking the Post Qualifying Child Care Award.
See also sections on case management and partnership