The New Public Law Outline and the Family Justice Reforms

Introduction

The family justice reforms and new Public Law Outline arise from a general agreement amongst practitioners and commentators that the family justice system is failing families.

In addition to failing families, the delays in the family justice system have significantly impact on the welfare of the children the system is supposed to be safeguarding and promoting.

The costs of public law proceedings are huge. Part of the costs arise from the protracted nature of proceedings and part from the enthusiastic use of experts.

It is interesting to remember that when the Children Act 1989 was introduced the intention of the legislators was for proceedings to finish within 8 weeks, with the possibility of an extension of a further 4 weeks.

In March 2012 the national average duration of care proceedings was 53 weeks.

The Reforms

The government’s response to the Family Justice Review is to create a single unified Family Court.

The Family Court will be created under the Children and Families Bill, which is expected to come into force on 1 April 2014.

The judicial response to the Family Justice Review is described in the new Public Law Outline

The new Public Law Outline – Key Elements

  • Judicially led
  • Key objective is to limit all public law cases to a maximum duration of 26 weeks
  • Anticipates the creation of the Family Court by integrating practice and procedure of the Family Proceedings Court and the County Court
  • Places great responsibility on the judicial case manager.
  • Imposes significant duties on the local authority.
  • Establishes a new time frame for public law cases.
  • The local authority is expected to carry out significant work with families before commencing proceedings; removing the need for delay once proceedings have commenced.
  • On issue, the allocation team of a district judge and a legal adviser allocate proceedings to the appropriate level of court – justices, district judges or circuit judges.
  • Standard directions are issued at the allocation stage.
  • On day 12 after issue, the case manager conducts the Case Management Hearing.
  • 2 days prior to the CMH advocates meet and file draft case management order
  • At the CMH, decisions are made about threshold, fact-findings and experts.
  • If these issues cannot be resolved – and the expectation is that they should be – the case can be listed to a Further Case Management Hearing on Day 20.
  • CMH are unlikely to be heard by justices but by the case manager, the legal adviser.
  • In Week 20 there will be an IRH.
  • By the IRH, all assessments and any fact-finding hearings should be completed, final evidence filed and the issues for a final hearing identified.
  • 2 days prior to the IRH advocates meet and file draft IRH order
  • Many cases/issues should be resolved at IRH.
  • The final hearing will be completed by Week 26.
  • Unusually, a case may take longer than 26 weeks: what is unusual remains to be seen.

How Will this be Achieved?

  • Threshold statements to be limited to 2 pages.
  • If threshold is crossed in one way, there is probably no need to litigate areas in dispute.
  • Social work statements to be shorter and analytical rather than narrative.
  • Better, smarter use of Chronologies.
  • Limiting the need for fact-finding hearings to what is necessary to establish threshold.
  • Experts to be instructed only where it is necessary and not where it is reasonable.
  • The primary sources of expertise in a case are the social worker and the Children’s Guardian.
  • Professional experts are only to be instructed where necessary to resolve the proceedings.
  • If an expert is instructed, the court must approve the questions – limiting them in number and scope.
  • Robust but fair case management.
  • Expectation on practitioners to work together to achieve 26-week determination of proceedings.
  • Existing case-law remains valid.
  • The Children Act 1989 has not been amended: the welfare of the child is still paramount.

The Children and Families Bill

  • Expected to enter force on 1 April 2014.
  • Statutorily incorporates the 26-week determination period of care proceedings.
  • Provides for extensions of this period by up to 8 weeks at a time but sets out factors that must be considered before extending the period.
  • Statutorily incorporates Part 25 FPR 2010: experts only permitted where it is necessary to resolve proceedings.
  • Reduces judicial scrutiny of the final care plan; limited to arrangements for permanence i.e. adoption, long term foster care or placement with family members.
  • Interim care orders to last for 6 months without need to renew.
    Changes to private law proceedings including replacement of contact and residence orders with child arrangements order.
    New presumptions regarding ‘rights’ of absent parent

Richard Powell

Counsel
Magdalen Chambers

 

 

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