A Talk by Sir James Munby (lately President of the Family Division) at the Annual General Meeting / Conference of NACCC, Amersham 24 November 2018

 

Everyone in the family justice system knows just what a vital role is played by Child Contact Centres and the contact centre movement. Child Contact Centres enable contact which otherwise might not occur to take place and they play a central part in maintaining, and if necessary restoring and rebuilding, the child’s relationship with parents, grandparents and other relatives.

In all this, the National Association of Child Contact Centres (NACCC) is fundamental. The scale of the activities supported by NACCC is substantial. Some 3,555 volunteers at 340 NACCC affiliated Child Contact Centres (2,381 at Supported Contact Centres, and 1,174 at Supervised Contact Centres) provide contact for around 20,000 children each year, in an environment which is regulated and safe.

NACCC and the whole contact centre movement are a distinguished example of the voluntary sector at its very best and of civic society operating as it should. NACCC is a body very close to my heart. I was honoured to be asked and delighted to accept the Trustees’ proposal that I become the President of NACCC. I will do whatever I can to assist all of you in all your very important work.

I was delighted to be able to note, in my Comment, NACCC – putting children first, being published in next month’s issue of Family Law, that:

Child Contact Centres … wish to play a role, alongside other agencies such as mediation services, in helping as many families as possible resolve their difficulties without resort to the family justice system.

I said:

This is, I believe, a fundamentally important objective … Court involvement might then be confined to the minority of cases in which judicial resolution is essential. I have long been clear that the aim should always be to avoid court involvement, if at all possible, and to help parents maintain primary focus on their children’s needs.

I should like to develop some of these thoughts and put them in a wider context.

It is now getting on for 15 years since, in April 2004, I delivered a judgment (Re D (Intractable Contact Dispute: Publicity)[2004] EWHC 727 (Fam), [2004] 1 FLR 1226) which attracted much notice at the time and which, sadly, given its contents, continues to be referred to far too often: see, only last month, the judgment of His Honour Judge Clifford Bellamy, the Designated Family Judge for Derby, inRe D (A child – parental alienation)[2018] EWFC B64.

My judgment in Re D, was an analysis and excoriation of the defects in the private law system. It began (paras 1-2):

On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his 7-year-old daughter … That battle had lasted for precisely 5 years … From the father’s perspective the last 2 years of the litigation have been an exercise in absolute futility. His counsel told me that the father felt very let down by the system. I was not surprised … I can understand why he expresses that view … In a sense it is shaming to have to say it, but I personally agree with his view.

I went on (para 4):

Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view. The melancholy truth is that this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact and to face up to it.

How far have things changed since then? Nothing like as much as I would have hoped.

There have been important developments: some positive, like the up-dated Child Arrangements Programme(PD 12B), the up-dated Child Arrangements and Contact Orders: Domestic Abuse and Harm(PD 12J) and Practice Guidance 18 January 2017; Family Court – Duration of Ex Parte (Without Notice) Orders; some decidedly negative – in particular the baleful and, one fears, all too predictable, and indeed actually predicted, effects of LASPO, the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

There are in fact two aspects to this last point; the family justice system has, in effect, suffered a double whammy:

• First, the effect of LASPO, with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever-increasing numbers of litigants having to appear unrepresented and without legal advice.
• Secondly, the Government’s policy of promoting mediation and making MIAMS (Family Mediation Information and Assessment Meetings) compulsory, with various exceptions, in private law disputes has been a disastrous failure. One has only to glance at Chapter 3 of Part 3 of the Family Procedure Rules 2010, and in particular Rule 3.8, or at paragraphs 12, 13 and 20 of PD 3A, or at the many relevant pages of Form C100, to appreciate the almost unbelievable complexity of the MIAMS requirement – how is a litigant in person supposed to be able to understand and navigate all this? And, most worrying of all, the number of mediations continues to fall dramatically, with no real sign of any likely improvement.

It is little wonder that, anecdotally and on the basis of the day-to-day realities, there is very real concern, to put the point no more starkly, on the part of most family justice professionals.

That said, our understanding of the private law system – I leave on one side international cases and focus exclusively on ordinary, run of the mill, cases as they feature, day in day out in the Family Court – is hindered by three pervasive realities:

• First, officially collected statistics are based on criteria which have not always been applied uniformly and which do not in fact measure all the things that ought to be measured. They do not therefore necessarily disclose the full reality. It has been said, for example, that the statistics do not support the assertion that, post-LASPO, cases are taking longer; indeed, it is suggested that, if anything, they show that cases without lawyers take less time than cases where there are lawyers. No doubt, this kind of analysis is comforting and convenient for the powers that be, but what is actually going on? May it not reflect what is so painfully obvious to those with real experience and understanding of what is going on, that so many cases involving unrepresented people ‘go short’, because of lack of understanding, because, unsurprisingly, they find the process completely alien and utterly daunting, and because, all too often (and however much a sympathetic and empathetic judge tries to help them), they simply ‘dry up’ and sit down?
• Secondly, private law cases are heard in large part by either Magistrates or District Judges, from whom appeals do not, by and large, ever reach either the Family Division or the Court of Appeal. The senior and appellate judiciary do not therefore have the same exposure to the prevailing practice in private law as they do, in contrast, to practice in public law (care) cases.
• Thirdly, because, post-LASPO, the private law Family Court is increasingly a lawyer-free zone, there is less feedback from the professions.

On the other hand, it is absolutely clear that there is still much – too much, far too much – wrong with the system. Occasionally, a searchlight is suddenly focused on particular cases, thus, and far too often for comfortable complacency, revealing in painful detail and with profoundly distressing clarity just what is going on.

Let me give two recent examples.

One is the judgment of District Judge Read, sitting in the Family Court at Middlesbrough in April this year, in JY v RY[2018] EWFC B16. The whole judgment demands to be read with attention, and not just his searing concluding ‘Observations’ (para 35).

The other is an article by Emily Dugan, This Is How Parents Cope In Court With No Lawyer When Access To Their Kids Is At Stake, published on-line by BuzzFeed News as recently as 9 November 2018. As a distinguished commentator, Louise Tickle, has said, and I wholeheartedly agree, this piece illustrates perfectly the value of reporting what goes on in family courts. “Nothing can show the utter disempowerment of people in the way this detailed reporting does. It takes the reader into the court. It shows them the parents’ inability to engage with the system no matter the care taken by the judge to make the process work. It shows how it cannot, and does not.”

Events such as those described in these two documents are an affront to justice and trouble the conscience of anyone with a proper concern for what the family justice system is and what it ought to be.

Shut out of the Process: Litigants’ Experiences in the post-LASPO Family Court, a summary by Jess Mant of her research at Cardiff University, posted on-line by the Transparency Project @seethrujustice on 16 November 2018, is illuminating and equally concerning.

And, more generally, there is the profoundly worrying short film produced by the Bar Council, Justice cuts: The stories behind the numbers, which includes, amongst much other arresting material, an interview providing a powerful insight from the perspective of the Personal Support Unit into the day-to-day realities.

One wonders whether officials and Ministers in the Ministry of Justice are aware of materials like this and what steps are taken in the Ministry to monitor those ever-revealing sources, BAILII and the blogosphere. It is to be remembered that the Secretary of State is also the Lord Chancellor and that, historically, the Lord Chancellor has always been Keeper of the Queen’s Conscience.

What, then, is to be done? Only a fool would pretend to know the answer. All I can do is suggest a few ideas. I invite attention to three matters in particular.

First, we need to divert many more private law cases away from the Family Court before they ever get there. That is the Government’s policy and it is, in principle, something I have always believed is necessary. Plainly, there are cases where a judicial resolution in the Family Court is essential, for example, cases where there are significant issues in relation to domestic abuse, mental health, or drug or alcohol abuse. But there are many cases which do not require the involvement of a judge and where, to be blunt, exposure of the parties to the court process can sometimes only make matters worse.

I shall, in the course of what I have to say, be identifying four key rolesin which, as it seems to me, the voluntary sector, working of course in conjunction with the professional bodies and other agencies, has a vital and increasingly important part to play. This is the first: the provision of mediation, arbitration and other services in those many cases which should not be in court at all.     

HMCTS is currently trialling a new online service for applications about child arrangements,[1]the online process being designed, amongst much else, to explain how such disputes can be resolved without going to court and, using the ‘nudge’ approach, to encourage the would-be litigant to find a non-court solution such as mediation. This radical approach has much to commend it – with others I have been pressing for it for a long time – and the early indications, I gather, are that it is going well. This is very good news.

Secondly, and in relation to those cases which nonetheless get to court, we need a much more rigorous allocation process, with triage as an essential element. Rules 1.4(2)(f) and 3.3 of the Family Procedure Rules 2010 require the court – the court “must” – to consider “at every stage in the proceedings” whether non-court dispute resolution (N-CDR) is appropriate. It is time that triage – something invented, I believe, on the battlefields of the Crimean War as long ago as the 1850s – became a much more central part of Family Court practice, not least at the very outset of the proceedings and before any directions have been given.

What do I have in mind?

• First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
  • because the parents should be required to exercise their parental responsibility and resolve matters themselves: see T v S[2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law (forthcoming); or
  • because the parents should be diverted into some form of N-CDR, for example, mediation, arbitration or whatever.
• Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
• Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow:
  • what I will call the ‘in and out’ track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or
  • what I will call the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or
  • what might be called the ‘special’ track for the potentially more complex cases.

Finally, and assuming that the case is to proceed in court, two things are essential:

• First, proper assistance, before and at the hearing, for unrepresented litigants.
• Secondly, radical reform of the process at the hearing itself.

I take these in turn.

Proper assistance, before the hearing, for unrepresented litigants raises a fundamental issue of enormous practical importance. The simple reality, I fear, is that:

• the guidance and other explanatory literature available for litigants in person is sadly inadequate;
• the court forms are very far from user friendly; and
• the Family Procedure Rules 2010 and associated materials are simply not fit for purpose and, from the point of view of the litigant in person, an obstacle to proper access to justice.

As I observed in the acerbic Foreword I wrote a year ago, in August 2017, for the latest edition of Lucy Reed’s important and absolutely invaluable book, The Family Court without a Lawyer – A Handbook for Litigants in Person:

The Family Justice Council has done valuable work in providing user-friendly literature for litigants in person, but otherwise the work thus far undertaken by Government – whether the Ministry of Justice, Her Majesty’s Courts and Tribunals Service or the Family Procedure Rule Committee – has been sadly inadequate.

So, I said, “it is to the voluntary sector and to practitioners such as Lucy Reed that we must continue to look.”

This, to emphasise a fundamentally important point, and without overlooking or downplaying the vital role of the Family Justice Council, is, as it seems to me, the secondof what I referred to above as the four key roles in which the voluntary sector has a vital and increasingly important part to play: providing guidance and explanatory literature for litigants in person, drafted using ordinary people’s English, in a way readily comprehensible by non-lawyers, and which is visually attractive and compelling in both style and presentation.

But the inadequacy of the guidance and explanatory literature available for unrepresented litigants in the Family Court is not, I fear, the worst or most pressing problem.

Coming to the heart of the problem, I continued in my Foreword:

The truth is that we face a massive challenge. At present our practices and procedures are designed for – assume – a family justice system where the typical litigant has legal representation, whereas the reality is that, across vast swathes of the family justice system, the typical litigant now has no legal representation. The consequence is that practices, procedures and rules designed for lawyers are largely inaccessible – truth be told, unintelligible – to litigants in person. The Family Procedure Rules are a monument to a certain traditional style of legal drafting but are no more useful or intelligible to the litigant than the Tax statutes are to the taxpayer. And most court forms are little better.

I added that:

The fact that this handbook is as long as it necessarily has to be if it is to achieve our author’s objectives is no criticism of her but rather an indictment of the unnecessarily over-complicated ‘system’ which her readers are condemned to navigate.

I returned to the same theme more recently (Reform and the future of family justice: where is the court modernisation programme heading?[2018] Fam Law 1426, 1428):

Neither the Civil Procedure Rules nor the Family Procedure Rules are fit for purpose, not least in a world in which the number of litigants in person is ever-increasing, and without any realistic prospect of the trend being reversed. The reality, if we are brave enough to say it, is that the Family Procedure Rules are, in large part, never consulted by lawyers, while being at the same time unintelligible to even the highly educated layman. They are far, far, too detailed – the drafting approach seems to ape that of Parliamentary Counsel drafting a Finance Act – and of labyrinthine complexity. The Red Book, that masterpiece of traditional legal publishing, runs to some 3,000 pages, the Family Procedure Rules and associated commentary occupying the best part of 800 pages. It needs to be thrown away.

We need to start again and, truth be told, we need a new and radically different kind of rules committee with key input from those who, unlike lawyers, however skilled and motivated, have the practical experience and the ability to draft using ordinary people’s English (which is not what lawyers think is ordinary English) and in a way readily comprehensible by non-lawyers. I regret to have say this but it is, I fear, plain that the existing rules committees are no more fit for their proper purpose than are the rules which they generate.

I would merely remind those who think it is impossible to have a system without vastly detailed rules, that the Tribunals by and large seem to manage – as do those who litigate there – with infinitely shorter and simpler rules.

So this, I suggest, is the third key role for the voluntary sector: to argue relentlessly for a new set of rules and, once that argument has been accepted by the powers that be, to play an active part in the drafting process so as to ensure that the new rules are drafted using ordinary people’s English in a way readily comprehensible by non-lawyers.

Next, we need to provide proper assistance, on the day and crucially at the hearing, for unrepresented litigants.

Much is already being done in many (but unhappily not as yet in all) family courts by the Personal Support Unit, by Law Centres, by Citizens Advice Bureaux, by the pro bono work of the professions, by the clinics provided by an increasing number of Universities, by local community groups and, of course, by the voluntary sector more generally. But the demand for assistance is vast and still, in great part, unmet, despite the heroic endeavours of so many.

At a time of austerity, when the maintenance of a properly functioning system of family justice seems to be very low in the list of Government priorities, and when, for example, the Government seems worryingly uninterested in the California model or anything like it (for an explanation of this see Self-help for LiPs, [2014] Fam Law 12345; see also my 13^thView from the President’s Chambers, [2014] Fam Law 1259, 1260), the truth is, I fear, that we are fundamentally dependent upon three things:

• the work of the voluntary sector
• the pro bono work of the professions and, critically, I suggest
• the drive and initiative of local Designated Family Judges (for what has been done in Bristol see ‘The way we are’: accessing the court after LASPO, [2014] Fam Law 1597 and [2015] Fam Law 1301).

So this, I suggest, is the fourth key role for the voluntary sector: to be there, on the day and crucially at the hearing, giving unrepresented litigants the assistance which so many of them so desperately need and without which so many are being denied justice.

Last, but by no means least, there is, as I have said, a need for radical reform of the process at the hearing itself. This is, ultimately, a matter for the judges, though I would urge the voluntary sector to go on pressing for it. There are two aspects to this:

• First, the court process needs to be more inquisitorial and less adversarial. Fact-finding hearings are necessarily adversarial – for that is the tried and tested method in our system of establishing the facts – but, for the rest, hearings in the Family Court can and should be less adversarial than too often at present they are.
• Secondly, and leading on from this inquisitorial approach, we need, as I have been arguing for some time, a fundamental re-balancing of the Family Court towards what ought to be its true role as a problem-solving court: see What is family law? – securing social justice for children and young people [2018] Fam Law 819, 822-823.

Is any of this achievable? Whether one is an optimist or a pessimist, all we can do is keep on, arguing for what is right and doing whatever we can to bring it about.

[1]               The court areas currently taking part are: Blackburn, Blackpool, Bristol, Cambridgeshire, Exeter, Gateshead, Grimsby, Guildford, Hull, Kent, Lancaster, Leicester, Liverpool, London, Mansfield, Milton Keynes, Newcastle, Nottingham, Oxford, Plymouth, Preston, Reading, Slough, Southampton, Sunderland, Watford, West Yorkshire and, in Wales, Cardiff, Newport and Swansea.

This post is reproduced with kind permission of Sir James Munby. Disclosure : the author of the book referred to by Sir James above (The Family Court without a Lawyer), Lucy Reed, is Chair of The Transparency Project.