Family courts need radical change of culture, says lord chief justice

Adversarial system must give way to a more inquisitorial approach, and culture of delay must be reduced

Family courts need a radical change of culture to combat “unacceptably long delays” caused by a system struggling to cope with an influx of care cases following the Baby Peter tragedy and planned cuts to legal aid, the lord chief justice has said.

Lord Judge was endorsing proposals in a report by the judge charged with modernising courts on behalf of the judiciary in response to the biggest change in family justice since the Children Act 1989.

The reforms will bring in specialist family judges under one roof, emphasising “strong judicial leadership and management” in a bid to reduce the culture of delay.

This involves a shift towards a more inquisitorial approach and away from the traditional adversarial system, allowing each judge to control the allocation and management of cases.

Judge described this as changing the role of the judge from that of the traditional referee, who waits for players to come on to the pitch, to a more modern referee, who enters the changing room and speaks to players before a match, identifying those who have a tendency to go offside. He said this process had proved successful in the crown court, improving efficiency in the criminal justice system.

The report was written as a response to the Family Justice Review, written by the businessman and civil servant David Norgrove.

It criticises the current way expert evidence is heard in family cases, describing experts as “misused and overused”. Judges will have more control over whether the court needs to hear from an independent social worker or psychologist.

The creation of a single family court means cases now heard in magistrates, county or specialist courts will instead all be dealt with by the same system, including civil partnership and forced marriage proceedings. The high court will remain separate, although high court judges will regularly sit in the family court.

The changes are also designed to help the system to cope with the expected surge in claimants without legal representation once the Legal Aid, Sentencing and Punishment of Offenders Act comes into force in April 2013. The report raises the prospect of “very real evidential difficulties” in cases where neither party has a lawyer, for example where parents cannot afford a DNA test to prove parentage and there is no public funding, or hair strand tests to prove drug or alcohol use. It warns that parents who, under the current system, would have legal representation “will not have had the benefit of legal advice to identify solutions to their problems on the merits and demerits of their proposals. They will not have had identified to them the issues the court can address before arrival at the court door. Many will have no idea what a conventional court process entails and some will have no desire or ability to take it on board.”

While sympathetic to litigants in person (LIPs), the report endorsed a “consistent but firm approach” to litigants “to ensure that issues remain in focus and are addressed within the timetable set by the court”. Under the proposals, judges will cross-examine parties to avoid situations where former partners are questioning each other or a victim of domestic abuse is forced to cross-examine the perpetrator. Ryder acknowledges that most cases involving LIPs take longer but says that, if a judge asks the right questions, a case may be quicker if there are no lawyers involved.

The report highlights the importance of engaging with children to help them to understand the court process, to ascertain their wishes and feelings and to explain the court’s decision. Ryder wants courts to consider the impact on the welfare of the child whenever a party asks to delay a case. Under the proposals, cases will be limited to a strict 26-week timetable.

Commenting on the report, the president of the Law Society, Lucy Scott-Moncrieff, said: “Effective case-management is vital to reducing delays in the family courts. Judicial continuity, specialisation and leadership are all essential to good case-management.

“Fast-tracking child care cases will help to identify those cases that can be finished within the government’s proposed 26-week time limit. Delays also need to be reduced in cases where separating and divorcing couples are seeking the court’s help in making arrangements for their children.

“However, achieving these aims without additional resources will be a challenge. The rise in numbers of unrepresented participants, following the cuts to legal aid, will put enormous pressure on the courts and the family justice system as a whole. There is an immediate challenge to develop effective methods of assisting parents without legal representation in private law cases.”