In 2000 the Lord Chancellor commissioned a scoping study to identify the causes of delay in Children Act cases. The study built on the 1996 report of Dame Margaret Booth.
The study concluded that there was no one cause of delay, but a complex interaction of factors, with problems varying from area to area.
The scoping study supported the findings of Dame Margaret Booth in identifying some problems that were specific to family proceedings courts. These problems concerned the:
Limitations on the powers held by judicial officers in family proceedings courts as compared to the county and High Court
The fact that magistrates courts are organised separately to the higher courts with separate IT and administrative systems.
The requirement to give written reasons
To identify possible solutions to these problems the Lord Chancellor's Department asked an independent working party of magistrates, justices' clerks and District Judge (magistrates' courts) to make recommendations on how these specific problems could best be tackled. We are grateful to all members of the working party for the open and constructive way in which they have gone about their task and, in particular to His Honour Judge Donald Cryan for his chairmanship.
The working party's discussions produced many positive ideas on case management. These are being fed into the Lord Chancellor's Children Act Delay Advisory Committee. His Honour Judge Cryan is represented on the group and representatives from family proceedings courts will be involved in taking forward this important work.
The Government's response to each recommendation follows - recommendations have been grouped where they are linked.
That the Family Proceedings Court (Children Act 1989) Rules 1991 be amended to permit the magistrates, in cases where the time needed for the preparation of written reasons is likely to cause significant inconvenience to the Court, the parties or their representatives, to announce their decision in open Court with a brief oral statement of their essential reasons and findings of fact and to deliver their written reasons within seven days of the making of the order.
That the Family Proceedings Court (Children Act 1989) Rules 1991 be amended to permit the magistrates in cases where sound recording systems are available to announce in court their decision together with their full reasons and findings of fact without the need to record them in writing.
The scoping study on delay identified widespread dissatisfaction with the current arrangements for the giving of written reasons, with parties and their advisers having to wait for often long periods while magistrates prepared their written reasons.
The Family Proceedings Courts (Children Act) Rules 1991 require at Rule 21 that when an order is made, an application is refused or a decision has been announced, the justices' clerk will provide a record of it by form or in writing.
Providing detailed written reasons is a key part of ensuring that the decisions made in family proceedings courts are transparent and understood by all concerned. Unlike the position in the county court the process of agreeing judgment in the family proceedings court is a collaborative exercise, reached after a period of time by more than one individual, after legal advice has been is given by the clerk. Inevitably it will take time. Written reasons ensure that where different members of panels have different opinions amongst themselves their concerns are fully considered. In any proposals for change we need to ensure that the benefits of such a direct and close focus by the panels in the preparation of a succinct summary of their reasons are not lost.
The working party's proposal would involve the parties being given an oral statement of their reasons with a full written statement to follow. On the face of it such a proposal would seem to have the potential to reduce waiting times at court. However, we are of the view that written reasons would have to be supplied much quicker than within 7 days of the hearing, within 48 hours is more acceptable. We say this for the following reasons:
the written reasons may be required for future proceedings or an appeal
written reasons will need to be prepared immediately after the hearing if they are to be accurate and fair to all parties
in many cases it would be impractical to reconvene the bench to prepare written reasons at a later date.
While there is potential for the court to give an oral statement, to release the parties and then immediately prepare their written reasons there is a question about whether this will actually reduce delay. It is arguable that the bench will need to go through the same detailed consideration of all the evidence to prepare their oral statement as they would to prepare written reasons. The written reasons must reflect the conclusion of the magistrates' detailed thought processes - these must be transparent.
We therefore believe that any change in this area must be subject to testing and piloting to identify whether or not change would actually reduce delay. This must precede any rule change. We will consult the Magistrates' Courts Consultative Council about how this might best be achieved with a view to initiating a pilot by the end of the year.
That there be a review of support technology and training available to Family Proceedings Court for the recording of decisions and the preparation of records of reasons and findings.
It is accepted that a system of electronic document exchange such as the one outlined in the Working Party's report may have merit. The provision of IT support generally in the family proceedings courts is under review. Some family proceedings courts deal with only a handful of cases per month. The cost effectiveness of providing the kind of facilities requested in small courts where there are such a very small number of children cases heard will need to be considered as part of the review. This recommendation will be factored into the work now underway so that proper consideration can be given to the resource and other implications of extending IT facilities and training on written reasons.
That pursuant to Section 93 of the Children Act 1989 the Lord Chancellor amend the Family Proceedings Court (Children Act 1989) Rules 1991 to provide that the Family Proceedings Courts shall give such directions, (with necessary modifications) as will carry into effect in the Family Proceedings Court the Practice Directions of the President of the Family Division to the same extent as they apply in the County Court.
This recommendation is accepted in principle, but will require primary legislation. The power for the President of the Family Division to make directions derives from the Matrimonial and Family Proceedings Act 1984. There is no equivalent power for family proceedings courts.
At present practice directions issued by the President of the Family Division are binding on the High Court and the County Court, but are not binding on family proceedings courts although they generally tend to be followed by them nonetheless. As a result there is potential for divergent practices across even neighbouring family proceedings courts. This can cause delay as solicitors, social workers, local authority legal departments and CAFCASS officers have to adapt their approach to the particular requirements of the individual court.
The Government White Paper on the criminal justice system Justice for All published on 17 July 2002 recognises the opportunities presented by the creation of a unified criminal court to enhance the unified jurisdiction that already exists in Children Act proceedings.
We propose to go further than the recommendations proposed by the Working Party. Not only do we agree that the President's power to make practice directions should be extended to cover family proceedings courts, but we also propose a unified Family Proceedings Rules Committee and a unified fees structure. This will ensure a more consistent approach across all tiers of court.
That Magistrates' Court Committees actively support appropriate training programmes for their clerks in the conduct of directions hearings and that the Judicial Studies Board play an advisory role in establishing best practice, and the provision of training materials and opportunities.
Clearly any action that improves training is to be welcomed. Judicial training is currently a matter for Magistrates Courts Committees. New arrangements will need to be agreed following the implementation of the reforms outlined in the Government's White Paper Justice for All with Local Justice Boards replacing Magistrates' Courts Committees. The Working Party's recommendation will be taken into account in developing justices' clerks training in the future. At present the Judicial Studies Board does not have a formal role in respect of justices' clerks' training. The Judicial Studies Board does have a supporting role in the training of magistrates and a leading role in the training of district judges (magistrates' courts). Many of the approaches adopted by the Board in respect of training in these areas could provide a model for Magistrates' Courts Committees to follow should they so wish.
That Rule 11A of the Family Proceedings Courts (Children Act 1989) Rules 1991 be amended to provide that the, in addition to the duties set out in the Rule, the Guardian shall monitor the compliance of all parties with the directions of the Court and inform the clerk to the justices forthwith upon the failure of any party, expert or legal representative to comply with any direction of the Court.
This recommendation is rejected. Case management is a judicial function. While the children's guardian clearly has a major role in advising on the child's best interests during the progress of the case, the responsibility for the overall management of the case lies with the justices' clerk or bench.
Given this principle we do not accept that placing additional responsibilities on CAFCASS officers is necessary or an effective use of resources.
We recognise the potential for a more collaborative approach in the management of cases e.g. meetings of experts outside court hearings. The Lord Chancellor's Children Act Delay Advisory Committee has been convened under the auspices of the President of the Family Division. The group is led by Mr Justice Coleridge and Mr Justice Munby. The Committee is currently considering a best practice protocol on case management that will promote measures to reduce delay. Family proceedings court representatives will be involved in the development of effective case management procedures.
That Rule 14 of the Family Proceedings Courts (Children Act 1989) Rules 1991 be amended to include a provision that upon being notified that any directions order made by the court or the justices' clerk has not been complied with, the justices' clerk or the court shall consider whether to give, vary, or revoke any directions for the conduct of proceedings, including those set out at Rule 14(2)(a) to (i). The provisions of Rule 14(5), as to the mode of making orders, shall apply in like manner to this provision as to Rule 14(2).
That the Family Proceedings Courts (Children Act 1989) Rules 1991 be amended to provide that upon being notified or otherwise learning that any directions order made by the court or the justices' clerk has not been complied with, the justices' clerk or the court shall consider whether on its face the non-compliance is so grave and culpable that the court ought to consider its powers to make wasted costs order or impose a penalty under S63 of the Magistrates' Courts Act 1980 and, where appropriate, the case shall be listed for the attendance of the parties and the consideration and making of such orders.
We accept that justices' clerks must have the requisite powers to manage cases effectively and that these powers must be clearly stated. We therefore accept the principle of these recommendations. In particular we recognise the importance of the court considering sanctions for non-compliance with the orders of the court where non-compliance is grave, culpable and prejudices the welfare of the child. This will require amendment to the Family Proceedings Rules 1991. We will use the Working Party's draft as a basis for wider consultation with the Magistrates' Courts Rule Committee.
That a comprehensive and fully resourced study be undertaken to establish the breakdown and distribution of work in each of the Family Proceedings Court, the number and experience of Family Panel Magistrates and the current clerking provision. On the basis of such knowledge a review should be undertaken of the number and location of Family Proceedings Court, and their staffing, both judicial and advisory. The aim of the review should be to identify the most expeditious way of dealing with Family Work, including the use of specialist centres, where appropriate, and the development of specialization in the Family Proceedings Courts.
We support the principle of greater specialisation. Family work in the magistrates' court is currently handled in over 300 centres. This means that some courts deal with only a handful of cases. This makes it difficult for staff to develop expertise in family work and also makes it difficult to make cost effective enhancements to facilities for families or to IT or other support services for the courts. We recognise, however, that there needs to be a balance between specialisation and ensuring courts are sufficiently local to court users to enable effective access to justice.
The proposals in the Government's White Paper for a unified court structure will enable decisions on court location and specialisation to be to be made taking into account all available court accommodation, judicial and staff expertise.
This process has already begun. The Modernising the Civil and Family Courts Estate Strategy (pdf - 434 Kb) has already put in place a number of recommendations for an new estate model comprising Primary Hearing Centres (which will centralise expertise) and Local Hearing Venues to ensure access to justice for the local community. In developing the strategy, we recognise that much of family business is conducted face to face. This requires a different approach to civil business on which a good deal of the judicial and administrative process can be handled remotely.
Delivering change will require more effective partnership working between magistrates and the County and High Court in relation to the use of the Court Estate - creating a unified structure can only enhance this partnership.
While this is clearly a longer term project we will be looking to develop the work already begun in two key areas this year:
Evaluating the benefits specialist centres have brought in the county court and benchmarking these with family proceedings courts
As part of our work on effective case management, we will be looking at the distribution of business between magistrates' courts. We have already begun consultation with the Magistrates' Courts Consultative council on this topic.
That administrative procedures be put in place between all Care Centres and their feeder courts at a "List Manager" level, so that appropriate and up to date information is available to judges and magistrates making decisions on transfer.
We support recommendation 11. It is essential that courts have up to date information on the availability of hearing dates when making decisions on transfer, particularly on grounds of delay. This is for courts locally to deliver and many courts already operate along these lines. The Government consultation paper Promoting Effective Interagency Working in the Family Justice System proposed a national consultative structure for the family justice system. The paper proposed linking local fora with a national Family Justice Council to enable more effective dissemination of best practice across the country. Clearly the way the transfer arrangements operate is key to reducing delay and this is likely to be a key issue for any new committee structure. The responses to consultation are currently being analysed and the Government hopes to respond in the Autumn.
That in order to heighten awareness of the benefits and availability of retransfer we recommend that the President and the Judicial Studies Board be invited to encourage the judges at all levels at the Care Centre to be proactive in identifying cases suitable for retransfer.
That the Children (Allocation of Proceedings) Order 1991 be amended to grant power to the County Court to transfer to a Family Proceedings Court Private Law matters under the Children Act 1989 if, having regard to the complexity, the likely length of any hearing, and the date upon which it could be heard, it is in accordance with the provisions of Section 1 of the Act to do so. The amendment should be in plain language. The need to liase with the Clerk to the Justices on a case by case basis under the Family Proceedings Rules 1991 should be amended.
We accept the principle that Children Act proceedings should be commenced at the lowest tier of court commensurate with the complexity of the case. This is already the requirement for publicly funded cases. All public law Children Act cases start in family proceedings courts. Private law Children Act cases can be commenced at any tier of court, although many are commenced in the county court as family proceedings courts have no divorce jurisdiction.
We will amend the Children Act (Allocation of Proceedings) Order 1991 to enable a case that commences or is transferred to the county court to be transferred down to the family proceedings court.
The Scoping Study on Delay in Children Act Cases concluded that requiring parties to commence free-standing private law proceedings in family proceedings courts was only feasible if there was a rationalisation of the number of centres handling family cases. This is because private law family work is currently spread too thinly to maintain expertise. However, we recognise that county courts are currently handling private law family cases that could be as effectively and potentially more quickly handled in family proceedings courts. We are committed to initiating all free-standing private law cases in family proceedings courts as soon as greater specialisation ensures that such a move does not increase delay.
We propose that the criteria for transfer will be the same as at present. This will enable the court to minimise delay, consolidate proceedings or ensure that the case is heard at the tier of court commensurate with the complexity or gravity of the issues raised.
We have given some consideration as to whether it would be possible to tighten the transfer criteria to iron out some of the inconsistencies in transfer rate which currently exist. However, we recognise that justices' clerks, magistrates and judges need to have the flexibility to determine what is in the best interests of a child in any particular case. We therefore believe that such issues are better addressed through training and best practice, as suggested in the working party's recommendation 10. The Government's consultation paper Promoting Interagency Working in the Family Justice System, published in March 2002, recommended a national Family Justice Council. Should this be supported on consultation, the Council would provide a further mechanism for enhancing best practice.
We hope to make the necessary amendments to the Children (Allocation of Proceedings) Order by the end of the year, but will discuss the timing of implementation with practitioners and the Judicial Studies Board (in particular with regard to recommendation 10). We also need to consider how best to accommodate this change in IT systems currently developed as part of the Courts & Tribunals Modernisation programme.
That counter staff and others dealing with the issuing of originating proceedings in the County Court are trained to alert litigants in person in cases where there are no related proceedings pending or impending in the County Court, that it is cheaper, and often quicker, to issue proceedings in the Family Proceedings Courts.
This recommendation is rejected. We believe proceedings should start at the lowest tier of court commensurate with the complexity of the case. However, it is not appropriate for Court Service staff to advise litigants to commence proceedings at an alternative venue. Court Service staff are not usually legally qualified and are not in a position to pre-judge the complexity or other factors which might result in the magistrates transferring the case back to the County Court at a later stage.
His Honour Judge Donald Cryan - Designated Family Judge, Medway County Court
June Bacon - Justice of the Peace
Brian Blackler - Justice of the Peace
Alison Burtt - Vice President, Association of Magisterial Officers
District Judge Nicholas Crichton - Inner London & City Family Proceedings
Court
Audrey Damazer - Justices' Clerks' Society
Dr Marylin Dyason - Clerk to the Justices
Julia Eeles - Association of Justices Chief Executives
Christine Field - Magistrates Association Family Proceedings Committee
Jacquie Harris - Panel Chair, Inner London and City Family Proceedings Court
Elaine Laken - Chair, Justices' Clerks' Society Family Law Committee
Mrs Carolyn Pilmore-Bedford - Clerk to the Justices
Written Reasons - To identify options for change.
Case Management Powers of the Justices Clerks - To identify the limitations of the current powers and how they contribute to delay. To identify options for change.
Transfer Criteria - To review existing criteria and to identify the extent to which current practice diverges from the principles set out in the Children Act (Allocation of Proceedings) Order 1991. To make recommendations as to the issues to be considered with Her Majesty's Council of Circuit Judges.