Nobody expects the English (and Welsh) Inquisition

(their chief weapons are delay, their devasting deployment of working parties and committees, and more delay)

This post arises from Mr Justice Ryder’s fourth tranche of Modernisation updates.

You can see an excellent analysis of this update over at Family Lore here:-

http://www.familylore.co.uk/2012/04/family-justice-modernisation-programme.html

and the actual source document is here :-

http://www.judiciary.gov.uk/Resources/JCO/Documents/family_newsletter4.pdf

The bit that has really struck a chord with me is the recognition that what we have at present is not the “inquisitorial” system that it is often labelled, but at best “quasi-inquisitorial” and in reality “adversarial”

This is not a quasi-inquisitorial approach. It is a full inquisitorial approach with the

court in the driving seat in relation to the issues to be tried and the evidence which is necessary for that hearing to be conducted fairly.

Recently, every time anyone has said to me that we have an inquisitorial system and not an adversarial one, my response has been “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”

Short of ducking-stools for witnesses, I’m struggling with a suggestion to make our process more adversarial.

[Not that this is necessarily de facto wrong – you might well argue that when the State and Courts are deciding what should happen inside a family, that this is just as worthy of an adversarial system as crime, or personal injury; but rather that the illusion of it being an inquisitorial system is a nonsense. If it is a good thing to have an adversarial system in family law, then let’s say so and be transparent about it, but if we think an inquisitorial system is the right way to do it, then let’s genuinely have one]

So, how could we make the system an inquisitorial one?

The Family Drug and Alcohol Court is a reasonable model – though it takes longer and no doubt costs more, the outcomes – in terms of keeping families together and having rehabilitations that work, are far superior to other Courts.

My imaginary version of an inquisitorial system would work like this (and I don’t claim it is without flaws) :-

1. The Local Authority file their threshold document, outlining what has gone wrong in the past, and also outline the areas that they would want to change in the future. Where there are practical steps that the parent could take to address the concerns, they should be set out.
2. The parents with the assistance of their representatives produce a response to threshold, outlining what is accepted and what is not, and outlining where they accept a need to change, and whether they will take the practical steps put forward.
3. If there is agreement, the heads of that agreement will be approved by a Judge, who will make it plain that progress in relation to the areas of concern will be necessary by the time the 26 week period is up, and that the parents will be measured against what they do  (moving away from the psychological bent of what a parent is theoretically capable of with the right support and towards what they actually do]
4. If there is a dispute, the Court will consider matters and give a judgment that sets out clearly where the LA concerns are justified, and where they are not, and what has to be done between now and the final hearing, by all concerned.

[In essence, this would be similar to the written agreement that is attempted at Letter Before Action stage, but this time, it would have the force of the Court behind it.  If the Court rule that the level of drinking these parents do isn’t problematic, then we knock that issue on the head and waste no further time on it unless matters deteriorate. If the Court feels that these parents would need to stop using heroin in order to parent to a good enough standard, then the parents can hear that from the Court, rather than from the social worker they’ve no time for…]

5. It would be the Judge, at that stage, who would decide what expert evidence they require to allow a fair outcome in the case and what information needs to be gathered. Of course, representations can be made, to ensure that the Judge has considered matters from a variety of perspectives, but rather than the Court being asked to approve the instruction of experts, the Court drive the process and decide what expert evidence THEY need to make the right decision. And they set the questions  (again, with some input to ensure that if there’s a critical issue that might be overlooked it is drawn to their attention, but getting away from the Letter of Instruction being a document produced by committee with the questions being pulled this way and that so that they end up being sprawling, voluminous and anodyne, and instead, focus on the questions that the Judge needs the expert to give guidance on)
6. The Issue Resolution Hearing becomes the sort of hearing we were promised when the PLO launched, conducted by a Judge who has (a) judicial continuity (b) time to consider the papers and embrace the issues, and with advocates who are prepared to set out what issues are agreed and which are controversial, and what the proportionate way of dealing with the controversial issues are.
7. At the final hearing, if less than fifty per cent of the questions asked of the professional witnesses don’t come from the Judge, something has gone wrong.

Now, of course, you can’t do any of that whilst Judges have the time pressures that they currently have. Anyone who comes to family courts will have noticed how the lists have swollen over the years, and tackling a directions day must now be something akin to trench warfare for a family judge – just getting through the day is a triumph, never mind the overarching strategic objectives.

It might well be that this sort of inquisitorial approach would free up space at the other end of the spectrum – having Judges spend far less time on cases where no stone is left unturned, no bad point left untaken, and no contact record unthumbed.  But I suspect that those savings would take time to come through, and that poor Judges would find themselves in an unenviable interlocutory position of having to be continuing trench warfare in the old style cases and having to be Field-Marshal Montgomery in the new style.

As a sidebar, here’s a little theory – I would wager that an astronomically greater proportion of collective brainpower and prep (in terms of Judges, solicitors, counsel and professionals) goes into each minute of a final hearing compared to a Case Management Conference, but if you put that same degree of focus and thought into a CMC, you’d reap substantial rewards at the end of the case, by getting things right at the beginning.

And of course, the listings stick the CMCs right in the middle of that trench warfare directions day, when a Judge is listening to the fourteenth set of people who have ‘helpfully agreed some directions for your approval’  and with a portion of their mind turning to the next nine cases that are waiting outside…