An end-of-term report was published by Sir Andrew McFarlane, the President of the Family Division, on 31 July. It covered myriad topics, so here’s a summary, with a few observations added.

We should clarify that this is not the Family Court Annual Report (still awaited) that was proposed more than two years ago in the October 2021 Transparency Review. This is the latest in the series of updates from the President’s Office that Sir James Munby initiated as a ‘View from the President’s Chambers’ in 2014.

The Pathfinder courts

The ‘pathfinder’ model in private law child arrangements cases has been piloted in courts in North Wales and Dorset. The pilot was extended to busier courts in South East Wales and Birmingham in April 2024. There’s an evaluation of the initial two courts ongoing, but the President is already convinced that the model ‘has turned out to be more radical, and far more successful, than even its most ardent supporters would have anticipated’. He gives a helpful explanation of the gist of the idea – ‘Rather than being litigant-led, this problem-solving approach is much more child-led’.  In the two original pilot areas, cases are resolved earlier and fewer cases are returning to court than previously.

However, the President warns that the model is dependent on continuing extra funding for Cafcass and Cafcass Cymru, who have to produce a Child Impact Report early in proceedings.

MIAMs

There are now tighter rules relating to exemptions from MIAMs (mediation information and assessment meetings) and parties have to submit a form about their reasons for not using non-court dispute resolution before any first hearing. If a non-exempt application gets to court without having tried a MIAM, the court now has to send them back to try.

While this might increase the take-up of MIAMs, we don’t see it addressing the common problem of an applicant who will attempt a MIAM, at some stage, but the other party won’t go to one. Information on mediation and other non-court dispute resolution may not be of interest to a respondent parent who isn’t looking for a change in children or financial arrangements, and they can’t be forced to go to a meeting.

Domestic abuse services

All local Family Justice Boards are encouraged to include a representative from local DA services as a member and to mark International Day for the Elimination of Violence Against Women, on 25 November.

We don’t know if anyone monitors local FJB activities. There is a national Family Justice Board which apparently last met in November 2023. Its terms of reference do not mention local boards.

The relaunched Public Law Outline  

There’s lot in the ‘View’ on the PLO. Apparently, case duration is going down (although as we found, there’s currently little to no data collected on this). However, progress is slow. There’s going to be a concerted effort to shake things up (again) from October.  Data is being collected from ‘key stakeholders’ by a working group during August. If you are a key stakeholder in public law but haven’t been asked for your views yet, the form is here.  It’s quite short.

One aspect that doesn’t seem to be working everywhere is the IRH (issues resolution hearing) which is being treated as a pre-trial review rather than a hearing where the judge has read everything and is well-prepared to hear some evidence that might resolve the case in that hearing. The President says that judges need to be given sufficient time for an IRH to do this. We suggest that more investigation needs to be done into how feasible this is.

The President notes that there are areas in London where care cases are taking a particularly long time, for example London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183 which we discussed in our August Roundup. This situation is to be looked into by a group of senior and London judges. 

There’s also mention of London as ‘an outlier’ in private law, regarding the number of fact-finding hearings held, but we’re not sure if this means London courts have a lot, or very few (or whether that is thought by the President to be a good or a bad thing).

Priorities set by the national Family Justice Board

The View states that the following priorities were set in April:

Public Law:

• No open public law case longer than 100 weeks;
• Average timeliness for care and supervision cases 32 weeks;
• At least 81% of all new cases to be completed in 26 weeks.

Private Law:

• No open private law case longer than 100 weeks;
• Reduce the number of open private law cases by 10%; and
• Improve the experience of children and survivors of domestic abuse involved in private law proceedings.

We can‘t see any Minutes of the Board published since 2023, so we don’t know how point 6 above will be set or monitored, but the other five are clear objectives. The View says that all six have been expressly agreed to by each of the Board’s member agencies: the MoJ, DfE, HMCTS, Cafcass, Cafcass Cymru and the ADCS, and accepted by the President on behalf of the judiciary. ADSS Cymru and Welsh Government (children’s services) are members of the Board, so we assume they have also agreed.

However, the President mentions that completed cases aren’t all being closed promptly on the system, so this recording needs to improve.

Adoption

There’s a reminder of the Public Law Working Group sub group on adoption being chaired by Mrs Justice Judd.  This group is due to report next month. We note that Nagalro have already advertised a conference about post-adoption contact on 4 October to be chaired by Judd J.

Disclosure of information between family and criminal proceedings

There was a new protocol in place from March this year. It will be reviewed next year. There is no mention of the fact that (to our understanding) some DFJ areas have not yet fully implemented the new protocol and others have suspended it.

Security in courts

Following the assault on the DFJ in Milton Keynes last November, a full review of court security has been undertaken and new training is now being given to all judges and magistrates, to ensure confidence in their own personal safety and awareness.

Transparency

Disappointingly little on this topic (from our viewpoint.) The View does not mention the NatCen evaluation of the Reporting Pilot nor their scoping study on data, although both these were published on the Judiciary TIG site earlier in July. We have flagged these up in Roundup and have summarised the data collection report. The guidance on Anonymisation and Publication of Judgments is at least mentioned in the View. Mysteriously, the Reporting Pilot evaluation disappeared from the TIG site in early August, so we uploaded a copy to our site. By the time you read this, it may have been restored.

The good news is that plans are now being developed to include all Family Court centres into the Reporting Pilot from next year onwards. So it will become the default model for media and legal bloggers to be able to report.

Digitisation of family court processes

The President expresses his thanks to Swansea court who are piloting a ‘private law portal’.  Other portals that practitioners now use and List Assist are mentioned, although without comment.

SIHIS – the suspected inflicted head injury service pilot

The controversial SIHIS pilot is mentioned, the President feeling the need to ‘stress that this is a genuine “pilot” intended to test out a new clinical approach’ and that ‘SIHIS does not alter the law or practice in relation to Part 25 experts. The hope … is that this approach will ensure all necessary clinical investigations are carried out prior to proceedings and that the clarity of presentation, content, and opinion that the Clinical Report will bring should assist in reducing the number of Part 25 experts the court considers it necessary to instruct.’ There is heavy emphasis upon the ‘clinical’ nature of the pilot and report which will be ‘a Clinical Report based on a template that will bring together in one report the results of all the clinical investigations and will contain the team’s assessment of the case from the clinical perspective’. Whether the President’s endorsement and careful language will quell concerns about the potential use of these reports in place of independent expert evidence, or about the potential for confirmation bias remains to be seen.

There will be a Family Justice Council Experts Committee Symposium in Cardiff on 16 October 2024. The programme will include presentations on SIHIS, Experts and transparency, Vicarious Trauma and Trauma Informed Practice.  Booking will soon be available through the Family Justice Council website.

And finally… new guidance is imminent on court bundles, and copies of nine Royal Wills are now publicly available. Spoiler alert: the President suggests that the contents of the wills are a bit dull. 

Just one more thing!

The Transparency Project is a registered charity in England and Wales run by volunteers who mostly also have full-time jobs. We’re working to secure extra funding so that we can keep making family justice clearer for all who use the court and work in it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.