We’ve noticed a number of recent family court judgments where Mrs Justice Lieven in the High Court is seriously attempting to tackle some of the causes of delays in family court cases and also addressing problems created by the scarcity of publicly funded resources.
We wonder if this approach is more widespread amongst other judges, and whether it’s welcomed by lawyers and social workers, or whether they might be worried about compliance with Article 6 of the European Convention – if there’s a risk a party isn’t able to fully participate in the proceedings. We also wonder if cases are in general taking any less time (but it seems impossible to find out).
In some of the cases outlined below, the judgments specifically refer to ‘making cases smaller’, a plea attributed to the President of the Family Division, in guidance he’s been issuing since his re-launch of the Public Law Outline (PLO) in January 2023.
The relevant issues in the cases outlined below are whether the following procedures are ‘necessary’ to resolve the case:
- Commissioning a cognitive assessment (i.e. how much could the mother understand?);
- Appointing an intermediary for a parent who was deaf (to help her communicate during the hearing);
- Appointing an intermediary for a parent who was asking for protective measures as a victim of domestic abuse (to enable her to give evidence);
- Holding separate fact-finding exercises (especially in busy magistrates/DJs lists); and
- Identifying the perpetrator of non-accidental injuries to a child.
(‘Intermediary; is defined in the court rules as a person whose function is to—
- communicate questions put to a witness or party;
- communicate to any person asking such questions the answers given by the witness or party in reply to them; and
- explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions – FPR 3A.1)
The necessity for a cognitive assessment of what a parent can understand
In West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) Lieven J considered an application to appoint a psychologist to carry out a cognitive assessment of a mother whose prematurely born baby was subject to care proceedings because the mother was said to have ‘failed to engage with antenatal services, including mental health services, and that there was a risk of harm from her association with the Father, who had a history of offences’.
The judge explained:
A test of necessity does not mean that a report would be “nice to have” or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.[para 26]
She added that the application by the mother’s lawyers had been ‘misconceived’ and advised Cafcass officers and lawyers representing children:
It is in my view unfortunate that the Guardian and her solicitor stated they were “neutral”. It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children’s solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources, in particular by assisting the Court to “Make Cases Smaller”, see the President of the Family Division’s The Road Ahead. If it is clear to the Guardian and the Child’s solicitor that an application should be refused, then they should make that clear to the Court. [para 17]
This judgment goes on to give explicit guidance to lawyers and all professionals in court on how to ensure parents can fully participate throughout proceedings, as follows:
‘It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.’ [22]
In other words, the starting point shouldn’t be to accept that family court proceedings are invariably too difficult for non-lawyers to follow.
The necessity for an intermediary for a parent to be able to communicate
In another, separate, case in Northamptonshire, West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 (Fam), the mother of a two year old child was profoundly deaf. A cognitive assessment in this case had been completed. This had found that the mother did not have a learning disability but the assessor recommended that she be provided with a BSL interpreter and an intermediary to enable her to participate in future hearings.
There had been a problem with the availability of an intermediary – and the outcome of this particular judgment was that Lieven J decided that the mother did require an intermediary because of the complexity of her specific communication difficulties.
However, the judge comments on the ‘paucity of guidance’ on appointing an intermediary in the family court and cites guidance in criminal courts as applicable. The principles are set out in para 45. To summarise, it should be exceptionally rare to order an intermediary to be present for an entire hearing. They should not be there on a ‘just in case’ basis and, in any event, should only be appointed at all if there are ‘compelling reasons’ to do so. The court should look for other adaptations to enable the party or witness to participate fully e.g having breaks in proceedings; ensuring that everyone (including lawyers) are speaking in short clear sentences, etc.
According to Local Government Lawyer,
if this guidance is followed, it is anticipated that significantly fewer intermediaries will be appointed in the Family Court as it is not sufficient to argue that the appointment of an intermediary will make hearings easier, but there must be compelling reasons to appoint an intermediary.
Presumably, the context here is that intermediaries are in such short supply that the court has to be persuaded that there are very strong reasons to appoint one at all, far less to try to find one able to attend an entire hearing. Interestingly, Communicourt say on their website that although an assessment report by their service may give the court guidance to help the individual party or witness, in about a quarter of their referrals they don’t recommend an intermediary is appointed to be present throughout the hearing. So it seems that Communicourt are far from profligate with offering intermediaries.
The necessity for an intermediary in a domestic abuse case, and for holding a fact-finding hearing
An application to appoint an intermediary was amongst several issues to be decided in TRC (Father) v NS (Mother) (Extensions of Time; Composite Hearings) [2024] EWHC 80 (Fam) .
Proceedings had been ongoing since May 2022 when the father had applied for a child arrangements order. In October 2023, the mother asked for an intermediary assessment. An intermediary assessment is explained by Communicourt in terms of assessing the level of communications difficulties through disability or learning difficulties, which didn’t appear to apply to this mother. However, intermediaries can also be appointed under FPR 3A.8 ‘special measures’ in circumstances where the family court decides that a complainant/victim needs one to be able to give full evidence. Under the rules, the family court has to decide whether the quality of the evidence and the participation of a party who alleges they are a victim of domestic abuse is ‘diminished’. There are a range of protective measures that can be put in place to address this.
In this case, at paras 52 and 53, Lieven J said:
There is nothing in the material before the court that suggests that the M cannot fully participate in the proceedings so long as appropriate steps are taken within the normal rules. In my view it is wholly unnecessary to order an intermediary assessment given the evidence that has already been submitted and the M’s ability to participate so far.
In respect of the M giving evidence, and the stress of the final hearing, appropriate measures can be put in place, including a screen and separate waiting area so that the M does not feel so intimidated by the proceedings. If her representative feels she needs a mid morning and afternoon break so that she can decompress, and anything necessary can be explained to her, then naturally that would be allowed. Further, the court will ensure that questions are put in a simple, straightforward and polite way, as should always be the case in any event.
The judge also upheld a decision by magistrates that making time for separate fact-finding exercises in this case had been unnecessary, saying:
The Family Court is not there to adjudicate on why the parents’ relationship failed, or past grievances. A fact find is only justified if it is necessary for determining the welfare outcomes for the children. On the facts of this case the Court had plentiful material on the parents’ past conduct. Both parents, presumably with the support of their lawyers, have put in 100s of pages about what had happened in the relationship, much of it of very little forensic value to the issue that is actually before the court. The Magistrates were in my view entirely correct to conclude that they did not have to have a hearing to make findings of fact about this past conduct. In particular they had transcripts of communications between the parents, which could not be disputed, and which gave them sufficient understanding of the parents’ conduct to determine the welfare outcomes for the children. [41]
Observing that this application had already been ongoing for more than 18 months, the judge planned to fix a one-day final hearing within two months.
More on the necessity for fact finding, and other case management procedural issues
X v Y [2023] EWHC 3170 (Fam) was a hearing in a contact dispute in private law held a few weeks before TRC v NS (above). Lieven J emphasised that avoiding delay is just as important in private law as public law:
The exhortation to “Make Cases Smaller” applies just as much if not more in private law cases as in public law ones. The time estimates must focus on the issues in the case and not the amount of time that the parties, and/or their advocates wish to take. There is a duty on the advocates to assist the court in focusing on the real issues in the case and setting a proportionate timetable. [para 71]
The issue here was case management where a final hearing had been listed for four days in early October but was adjourned, at which point the lawyers were asking for the hearing to be listed for eight days. However Lieven J decided at a case management hearing in mid October that listing the case for a one day final hearing would be sufficient to resolve all the applications by the mother. The father was serving a prison sentence for violent offences and was due to be deported to Hungary. The mother sought orders: that the children live with her; that they have no contact with the father; that a prohibited steps order preventing the father from removing the children from the jurisdiction should remain in place; permission for the children’s surname to be changed; and that a s.91(14) order be made.
By the stage of the final hearing, the evidence before the court was that both children were happy and very well settled with the mother, well looked after, and there were no issues with her parenting. The children had no real memory of their father. There were comprehensive reports from Cafcass, children’s services, and the probation service.
On the evidence before her, the judge was clear that a one-day final hearing would proceed, despite a series of delaying tactics by the father. She said that it was not even necessary to call the mother or the father to give evidence ‘given their written statements and what was obvious from the papers.’ [72] All the orders sought by the mother were made, apart from the change of surname which in the circumstances the judge concluded would confuse the children and not be in their welfare.
Lieven J, no doubt mindful of the suggested eight-day hearing, called on lawyers to assist the court:
The time estimates must focus on the issues in the case and not the amount of time that the parties, and/or their advocates wish to take. There is a duty on the advocates to assist the court in focusing on the real issues in the case and setting a proportionate timetable. [71]
The extent of evidence required to identify the perpetrator in a non-accidental injuries case
In Derbyshire CC v The Mother and others [2023] EWHC 2552 (Fam) Lieven J noted that the appointment of a new expert to give a view on how a child had been injured was not necessary. Such an exercise would have added a further 18 month delay in holding a welfare hearing and the evidence was clear that the pool of possible perpetrators comprised only the two parents, both present when the four year old child was injured with a knife during an argument in the kitchen/diner. The judge concluded that neither parent was telling the truth about the incident; each parent was being careful to say enough to avoid taking responsibility, but not enough to suggest they knew what had happened. There were already reports from two forensic physicians before the court about the injuries. The judge said:
in light of the fact that both parents deny inflicting the injury or seeing it inflicted, I did not consider that either hearing oral expert evidence, or instructing a further expert, would materially assist me in determining the key questions in the case. I had in mind the President of the Family Division’s exhortation to “make cases smaller”. Having now heard the parents’ oral evidence I am entirely fortified in my view that further forensic evidence, or cross examination of that evidence, would not have assisted me. [8]
This case had already been running for 14 months and the judge was critical of both parents for causing additional emotional harm to the child and her older sibling through the delay their denials had created.
Comment
We simply don’t know whether care cases are taking a shorter time to get through the courts than a year ago.
It is now more than ten years since the Children and Families Act 2014 introduced the 26-week time limit on care proceedings and restrictions on expert evidence, and the introduction of the PLO; three years since the recommendations of the Public Law Working Group; and just over a year since the PLO re-launch. The President’s ‘View’ in July 2023 mentioned positive signs of case duration decreasing, but we haven’t been able to find any 2023-2024 data published by the Family Justice Board, Cafcass, or the Ministry of Justice . Unhelpfully, the table for ‘timeliness’ of public law proceedings has now been removed from the MoJ statistics reports because of ‘data quality issues’- as quietly reported here. [UPDATE 9 May 2024: we have found some figures and written a brief update here.
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Image – Kandinsky: Small Worlds – thanks to Rob Corder at flickr
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