Guest post: Justice Delayed in the Family Courts?

This guest post is written by Dr Brian Sloan, Director of Studies in Law at Robinson College, Cambridge. 

‘Justice delayed is justice denied’ goes the old legal maxim, and delay is often identified as one of the biggest problems with the family justice system.  That system must deal with an enormous range of highly sensitive and critical issues, from whether a wife should be required to pay maintenance to her husband after they divorce to whether a teenager has a right to refuse life-saving medical treatment; and from whether an estranged grown-up daughter who has been ‘cut out’ of her dead mother’s will should nevertheless receive something from the estate to whether a baby is at such a risk of significant harm that he should be forcibly taken out of his parents’ care and possibly adopted by strangers.

At the end of last month, the experienced family judge Mr Justice Ryder published Judicial Proposals for the Modernisation of Family Justice, largely in response to the wide-ranging recommendations of the Family Justice Review.

A development at the centre of Judicial Proposals had in fact already begun to take place before its publication.  The Crime and Courts Bill, currently before Parliament, would introduce a single Family Court with regional centres.  The new Court is intended to simplify existing arrangements, although the High Court (along with the Court of Appeal and the Supreme Court) will also deal with family issues.

Mr Justice Ryder did make a number of his own recommendations aimed at reducing delays in the family justice system.  In his view they comprised ‘two key elements’: ‘strong judicial leadership’ and ‘robust case management’.  For example, he was anxious that judicial resources should be better managed so that cases could be properly prioritised and the same judge could hear a case right to its swift conclusion.  His proposals demand better timetabling so that judges and lawyers are given time to read the most important documents.  He also wants to see increased use made of particular judge’s specialisations, which makes sense in the light of the range of family work I identified above.

In outlining his ‘framework of good practice’ on case management, Mr Justice Ryder advocated a reduction in the volume (though not the quality) of documentation presented to the court by parties to a case.  He emphasised the importance of scrutinising the need for expert witnesses, whose evidence can be both time-consuming and expensive.  At the same time, he was conscious that decisions need to be rigorously based on evidence of ‘what works’.  His framework would involve the distribution of ‘materials which provide headlines and signposts to the rules, practice directions, and good practice which should be used to improve outcomes for children’.

Delay is seen as particularly problematic in ‘public law’ cases involving the potential removal of a child by the state from the deficient care of his parents.  Mr Justice Ryder proposed changes presuming that non-exceptional cases can be completed within 26 weeks, with a timetable decided at the start of each case and sanctions for non-compliance.  He also suggested that certain aspects of the process should be considered more investigative, rather than the adversarial approach usually adopted in English Law.  Outside of ‘public law’ cases, for example in financial and child-related disputes between separating spouses, Mr Justice Ryder was particularly concerned about the implications of legal aid cuts and the resulting increase in litigants representing themselves before the courts (see this video by my colleague Jo Miles).  He identified the responsibility of judges to ensure that such litigants have access to justice.  Finally, Judicial Proposals recognised the importance of both hearing a child’s own views where possible and respecting confidentiality in court proceedings.

Mr Justice Ryder’s proposals are an important reminder to those of us interested in academic family law that whatever we might think of the legal principles to be applied in a given case, they could be almost irrelevant if the procedures aren’t sufficiently effective to allow their proper application.  More fundamentally, he was grappling with aspects of an issue that pervades the whole of family law.  If the justice system intervenes too quickly, too onerously or without adequate information, it risks unjustly destroying the private family life of the parties involved, possibly with life-long implications.  On the other hand, if it intervenes too slowly, too hesitantly or too ineffectually and without using enough resources, it places the parties (and particularly children) at risk of serious harm.  Whilst Mr Justice Ryder has made some laudable proposals, it would have been impossible for him to remove that basic tension.