Changes to public law
The pressures on the public purse as much as those of the present Conservative government have brought about yet more radical changes to public law proceedings. To echo the words of Sir James Munby, the president of the Family Division: ‘The family justice system is undergoing the most radical reforms in a lifetime. The process of reform is little short of revolutionary.’ For those on the coalface, these changes can of course be both exhausting and exhilarating. At every level of the family justice system there is a sense that the goalposts have been moved. It will be incumbent on family practitioners to do all they can to ensure that fairness is not compromised in this brave new world.
There is the creation of the new Family Courts (expected in April 2014); the recent policy and legal developments culminating in The Children and Families Bill 2013 (CAFB 2013) and a further assault on legal aid, resources and funding. From 1 July a pilot Public Law Outline (PLO) for care, supervision and other Part 4 proceedings will be introduced. The pilot will run until 1 April 2014 and aims to enable courts in specified areas to implement a proposed 26-week time limit to proceedings. At present the national average for care proceedings is 47 weeks. The clear message is that 26 weeks will not be a target, but a maximum requirement imposed by parliament.
On 30 May the pilot PLO and accompanying practice direction were circulated by the president and some of the key points are as follows:
- There is a distinction between Local Authority documents to be filed with the court, to be served on the parties and to be disclosed on the request of the parties.
- Documents over two years old are not to form part of the LA’s evidence unless reliance is placed upon them.
- Threshold documents will be limited to two pages only.
- Courts will make standard directions on issue which effectively replace the directions commonly made at the first appointment.
- Children’s guardians will be required to complete a Case Analysis both in the early and later stages of proceedings.
- The case management hearing is to be held no later than day 12. This is intended to deal fully with case management issues and it will not be routine for a further case management hearing to take place.
- Advocates’ meetings, including any litigants in person, will take place prior to the case management and issues resolution hearings and it is intended that they play a greater role in determining the issues.
- There is scope for extensions to the 26-week limit if the court considers it necessary to enable the court to resolve issues justly.
Extensions will be for up to eight weeks and there is no limit on the number of extensions which can be granted. The approach of the Appeal Courts to robust case management decisions will be eagerly awaited and will, of course, have a huge impact on whether the 26-week time is achievable. One other significant rule change which will have a considerable effect in the 26-week time limit is the question of experts in family cases.
The amended Family Procedure Rules 2010, Part 25 (and associated practice directions) (in force since 31 January 2013) provides: R25.1 Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. The clear consequence of the 26-week time limit and the amended Part 25 direction is that Court must seek to rely far less on external expert evidence in family proceedings. Greater reliance will be given to the two experts already employed in each case, namely the Local Authority social worker allocated to the case and the children’s guardian.
It will obviously increase still further both their workload and the pressure on their role in the proceedings. It will also make the work of the advocate representing the parents at trial all the more important. This point on limiting the use of expert evidence was recently echoed by the president sitting in the Court of Appeal in Re TG (A Child)  EWCA Civ 5, where he re-affirmed that in every case it will be for the case management judge to assess and evaluate the degree of likelihood that a particular expert’s evidence will or will not be of assistance to the court in determining the relevant issues.
What has become a problem for many practitioners recently has been even if they can persuade a case management judge to allow them to instruct an expert, then the Legal Aid Agency will refuse to grant prior authority for the preparation of an expert report and give no reason for refusing the same. This matter was considered by way of a judicial review in the matter of R (on the application of T (by their Guardian & litigation friend Sue Clarkes) v Legal Aid Agency & (1) Ealing London Borough Council (2) Parents of T1-T6 (interest parties) (2103)  EWHC 960 (Admin). Collins J, held that where a judge was satisfied that an expert was necessary then it seemed that the Legal Aid Agency should only refuse to give prior approval if it had very good reason to do so. That if there was a good reason to reject it in whole or in part, the LAA should engage with the court.
If the judge, having considered the LAA’s representations, maintained his decision it was difficult to see how a continued refusal to give effect to it could be other than unreasonable. Whilst this is clearly positive news for practitioners, for the reasons set out above it may well be just that little bit harder to persuade the case management judge to make the original Part 25 order for the expert in the first place.
The burden on the parent (and indeed their lawyers) will clearly become much more difficult, with more expected to be done quicker and with only limited resources. Added to this is the enormous stress on the courts as a rule of the recent changes to legal aid in private law proceedings (a false economy as to savings both in the short and long term). These are clearly interesting times.
Jason M Hadden MBE, is a barrister at St Ives Chambers in Birmingham