The Government have published their proposed legislation to bring about the Family Justice Review. It’s a lot shorter than one would envisage.
You can find it here
I won’t deal with the private law aspects, since my interest is in the public law side of things.
Here are the major headlines :-
An importation of a test of it ‘being necessary to assist the Court to resolve the matter justly’ before commissioning an expert assessment, and some factors to take into account
The factors are:-
(a) any impact which giving permission would be likely to have on the
welfare of the children concerned, including in the case of permission
as mentioned in subsection (3) any impact which any examination or
other assessment would be likely to have on the welfare of the child
who would be examined or otherwise assessed,
(b) the issues to which the expert evidence would relate,
(c) the questions which the court would require the expert to answer,
(d) what other expert evidence is available (whether obtained before or
after the start of proceedings),
(e) whether evidence could be given by another person on the matters on
which the expert would give evidence,
(f) the impact which giving permission would be likely to have on the
timetable, duration and conduct of the proceedings,
(g) the cost of the expert evidence, and
(h) any matters prescribed by Family Procedure Rules.
We all knew this was coming. They have tagged it into the original section 32 of the Act (yes, that section 32 that everyone talks about all the time and that is at the forefront of everyone’s mind when doing care proceedings. To save you scrabbling for the Act, it is the Court’s duty to set a timetable to determine the case)
Here’s what the new provisions say :-
Amend s32 to include
In subsection (1)(a) (timetable to dispose of application without delay) for
.application without delay; and. substitute .application.
(i) without delay, and
(ii) in any event within twenty-six weeks beginning with
the day on which the application was issued; and..
So that’s the hard cap, of twenty-six weeks – we then get into the fudging of that hard cap (to mix metaphors terribly)
(Insert in section 32 of the Act, section 32(2) )
S32 (3) A court, when drawing up a timetable under subsection (1)(a), must in
particular have regard to.
(a) the impact which the timetable would have on the welfare of the
child to whom the application relates; and
(b) the impact which the timetable would have on the conduct of
S32 (4) A court, when revising a timetable drawn up under subsection (1)(a) or
when making any decision which may give rise to a need to revise such
a timetable (which does not include a decision under subsection (5)),
must in particular have regard to.
(a) the impact which any revision would have on the welfare of the
child to whom the application relates; and
(b) the impact which any revision would have on the duration and
conduct of the proceedings.
S32 (5) A court in which an application under this Part is proceeding may
extend the period that is for the time being allowed under subsection
(1)(a)(ii) in the case of the application, but may do so only if the court
considers that the extension is necessary to enable the court to resolve
the proceedings justly.
S32 (6) When deciding whether to grant an extension under subsection (5), a
court is to take account of the following guidance: extensions are not to
be granted routinely, but are to be seen as exceptional and as requiring
S32 (7) Each separate extension under subsection (5) is to end no more than
eight weeks after the later of.
(a) the end of the period being extended; and
(b) the end of the day on which the extension is granted.
S32 (8) The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or
the opening words of subsection (7), for the purpose of varying the
period for the time being specified in that provision.
(9) Rules of court may provide that a court.
(a) when deciding whether to exercise the power under subsection
(b) when deciding how to exercise that power,
must, or may or may not, have regard to matters specified in the rules,
or must take account of any guidance set out in the rules..
(4) In subsection (1) (court.s duty, in the light of rules made by virtue of subsection
(2), to draw up timetable and give directions to implement it).
(a) for .hearing an application for an order under this Part. substitute .in
which an application for an order under this Part is proceeding., and
(b) for .rules made by virtue of subsection (2)). substitute .provision in
rules of court that is of the kind mentioned in subsection (2)(a) or (b))..
That’s less clear than one would hope, so I’ll break it down.
- When setting a timetable, the Court is now obliged by statute to consider the impact on the welfare of the child and the impact on the proceedings of that timetable. [They don’t deal with the elephant in the room that sometimes the article 6 right for the proceedings to be fair may clash with the welfare of the child for the decision to be taken in a timely fashion, but ho-hum]
- If the Court has to revise that timetable, they need to take into account the impact of that revision on the welfare of the child and the impact on the proceedings
- The Court has the power to go beyond 26 weeks, but only if the extension is necessary to enable the Court to resolve the proceedings justly. [This is the barn doors being flung wide and truly open, and is pretty much how we justify delay now by labelling it ‘constructive delay’]
- Best try and close those barn doors, before all the horses get out, so if the Court is going beyond 26 weeks, the Court must be aware that such extensions are not to be granted routinely but are to be seen as exceptional and requiring specific justification [Oh, we took off the barn doors, but it’s okay, because we have replaced them with doors made out of tissue paper, hooray!]
- Each extension can only last 8 weeks, but the Court can make as many as are required, provided that the criteria for granting an extension are made out. [We’ve got more tissue-paper barn doors in the back, don’t worry]
- The Lord Chancellor can revise the wording of s32 (1) (a) or the new s32(7) – which are the ‘it’s 26 weeks’ and ‘each separate extension is no more than 8 weeks’ and can amend these by Regulations. [Hey, just in case you were planning to misuse those tissue paper doors, the Government is going to bring in more horrible regulations to stop you if the average case length doesn’t come down to something like 26 weeks]
- And we can set Rules as to how the Court must make the decision about granting adjournments, in case you’re misusing them and applying them to nearly all cases, as the Court will inevitably be invited to do.
I think this is pretty much what I suspected it would be, having been to the Mr Justice Ryder roadshow – the judiciary had persuaded the Government to allow them to have discretion rather than a fixed hard cap, and the Government had allowed them that discretion, but made it plain that such discretion will be taken away from the judiciary by new Regs and Rules if it is misused.
I’m really struggling to see how any individual case being dealt with by the Court of Appeal where an adjournment is being sought for something that would currently be granted and is refused by Judges applying this new s32 will not be overturned. Yes, looking at the vast sea of cases as a whole, the Court of Appeal will think that it is right that they are all dealt with expeditiously, but in this particular case, the delay is justifiable.
In short, I don’t think there is enough meat on the bones to show why the Court would be right to refuse an adjournment in this case and right to allow it in this other case. Until we get some solid guidance from the Court of Appeal, there will just be a horrific log-jam of cases where adjournments are sought, refused and challenged (or allowed for fear of an appeal which would delay things further than the actual planned delay)
I see no other outcome from this than the Government looking at the stats after the new Act comes into force and saying “right, well you’re nowhere near 26 weeks, so that judicial discretion you wanted is going to have to be taken away, or locked down really tightly”
The guidance is interesting on the factors that might justify extension, and are far far far more limited than a reading of the legislation would suggest
51.The factors which may be relevant when the court is considering whether to extend time beyond 26 weeks or beyond the end of a previous extension may include, for example, the disability or other impairment of a person involved in the proceedings, if that means that their involvement in the case requires more time than it otherwise would, or external factors beyond the court’s control, such as parallel criminal proceedings.
Interim Care Orders and Interim Supervision Orders to last as long as needed
As a Local Authority lawyer, the renewal of ICOs and ISOs in long-running proceedings where they are not being challenged is a dull and pointless process, and I’m glad they’re being got rid of; but losing the tool of ‘short order, until the matter can be litigated’ might be more problematic than the legislators realised.
I can also see that with the idea of a 26 week cap, contested ICOs will probably become more prevalent (you need to have the child in your care at week 26 to have a good chance of a positive outcome since the Court won’t be granting adjournments and extensions to allow for a phased rehab or further work, hence it becomes much more critical where the child is at that 26 week cut-off)
Get your nose out of the care plan
The Court now has to look at the ‘permanence provisions’ of the care plan (whether the child will live with parents, relatives or elsewhere) but nothing else. But the legislation is worded that the Court is no longer required to consider the remainder of the care plan, and it seems to me that this is not likely to be sufficient to stop Judges who have become well-accustomed to inspecting, dissecting and tinkering with the fine detail of care plans, and counsel who wish them to do so, from abandoning that practice. It’s a bit peculiar that the ‘permanence provisions’ don’t specifically include contact, but as they say ‘the long term plan for the upbringing of the child’ it is probably wide enough to include anything the Judge wants to take an interest in.
I think, on the whole, I rather prefer John Hemming’s proposals for reforms.