Brave New World?

Proposals for modernising the family courts could cause more problems than they solve, says Zoe Saunders

Back in the dim and distant past (July), before the chaos of school and summer holidays, Mr Justice Ryder delivered the final chapter of his latest magnum opus: Judicial Proposals For The Modernisation Of Family Justice.

There can be very few family practitioners who have missed the Ryder road-show as it toured pretty much every corner of England and Wales; as the kind of person who ends up at a lot of these things I think I’ve seen him speak on this topic at least four times to a variety of audiences. But now that the talking and listening is over what does the final report reveal about what it might be like to live as a citizen of this brave new world of modern family justice? I will be looking at what I think are the key issues that will have the biggest impact on both practitioners and court users and trying to read between the lines and estimate how this all might work in practice. I tried to fit it all into one blog, but it was too much so I’m afraid this one comes as a series, starting with the single family court.

As a practitioner who has had to survive at least two separate initiatives ‘encouraging greater use of resources’ by forcing everyone to issue any new application in the Family Proceedings Court, I must admit that the idea of a single family court in which ‘all levels of judge and magistrate will be members of the same court’ rather fills me with dread.

In my optimistic moments I hope that this means that we can live in Ryder J’s utopia where there will be a more effective court administration and listing system, where cases are allocated on the basis of complexity, with the magistrates dealing with the most straightforward cases and so on up to High Court judges being swiftly allocated the really complex or intractable cases. This would do wonders for listing and judicial continuity and probably improve the court experience for everyone.

Ryder J’s proposals about ‘more effective management of existing judicial resources’ with ‘better listing practices’ do sound fantastic. There can be very little argument with the idea that quicker hearings in urgent cases are a good thing, that judges need enough time to read the papers before their cases, that bundles should be proportionate to the cases (my chiropractor may yet miss out on early retirement!) and that consent orders should be properly scrutinised.

The idea of ‘judicial leadership’ may fill you with joy, or with fear, probably depending on which judge you are thinking of, but as the alternatives seem to be politicians or HMCTS administrators I think judges looks like by far the best alternative! It is undeniable that judges have the best understanding of the work that the courts actually do and how it does it. The lack of evidence on this point was one of the biggest criticisms of the Family Justice Review and it is clear that this gap will be filled, with more detailed orders so that there is a clearer record of what case management decisions have been taken and why.

The thorny issue of case allocation is where I begin to have concerns about Ryder J’s utopia. The proposals suggest that transfer and review will cease to exist and that allocation decisions will be made by reference to ‘deployment information’ (whatever that is) and guidance derived from existing case law on the distribution of cases by complexity. Note that there is no reference to resource availability (unless that is what ‘deployment information’ means).

These decisions will be made by an ‘allocation judge’, who will normally be a district judge or a senior legal adviser to the magistrates. It is not clear to what extent one can request specific allocation or give reasons for any such request; if this is possible it is not clear what weight any such request would be given.

In my more cynical moments I suspect that increasing pressure on resources caused by budget cuts and the impending tsunami of ‘self-represented litigants’ (of which, more later) will lead to pressure on the allocators to allocate increasing amounts of work to the Family Proceedings Court, because magistrates are cheaper than judges. The risk is that some cases that really need to be in front of a full-time judge will stagnate in the FPC because there will be no ‘up’ to transfer to, or that really complex care proceedings or intractable contact disputes will be denied access to the High Court because they didn’t start out there.

Ryder J suggests that there will be an initial allocation decision on paper with a right of oral reconsideration and then a case management appeal thereafter; but it’s not clear what should happen in cases that look very straightforward on issue, but turn out to be a Pandora’s Box of messy complexity after a couple of hearings. I am concerned that the emphasis on judicial continuity may lead to cases not being transferred moved across/reallocated/whatever? when they should be.

I appreciate that I sound very negative about the FPC and I fully accept that there are some fantastic magistrates doing excellent work in FPCs across the country, but my experience of FPCs is that the quality is hugely variable and I have seen too many cases handled really badly to have confidence that the FPC can consistently handle more complex cases fairly and justly without some serious reforms. But that is a whole other blog.

There are hints that the Single Family Court will encourage specialisation and enhance training for magistrates and judges and encourage magistrates and judges to work more closely together and not just in terms of geography, although that is also proposed. This can only be a good thing and I hope in time it may deal with questions about the variable quality of decision-making that worry me so much.

Zoe Saunders is a family barrister at St John’s Chambers