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‘Inquisitorial’ hearings planned for family litigants-in-person
Judges will adopt an inquisitorial approach to family cases, limiting cross-examination by the parties themselves, to deal with the increasing number of litigants-in-person, the judge in charge of family court modernisation has indicated.
Mr Justice Ryder also said that the use of experts will be limited, giving judges greater control over the issues that are to be determined.
Addressing the public child care law conference in London on the court reform programme yesterday, Ryder said the judiciary and courts service plan to devise a ‘private law pathway’ or guidance telling litigants-in-person about the court process.
‘In a conventional case that may involve restrictions on the right of one party to cross-examine another, relying instead on each party having their say, the judge identifying the issues upon which he or she needs further assistance and then the judge asking questions of each party himself or herself,’ he said.
Following the legal aid cuts being introduced in April 2013, which remove public funding for private law proceedings, Ryder said the courts will have to deal with ‘a volume of previously represented parents’.
‘They will not have had the benefit of legal advice to identify solutions to their problems on the merits and demerits of their proposals. They will not have had identified to them the issues the court can address before arrival at the court door.
‘They will arrive without professionally advised applications seeking permission to file evidence. Many will have no idea what a conventional court process entails and some will have no desire or ability to take it on board,’ he said.
He added: ‘We cannot expect our district bench colleagues who presently decide the majority of private law applications, and the magistrates who are likely to have allocated to them many more of these cases, to cope without assistance.’
Ryder said the judges also hoped to publish a ‘statement of inquisitorial principle’ defining judges’ role in proceedings, demonstrating that, save in relation to adversarial fact-finding sufficient to make the ultimate decision before the court, the judge’s function is inquisitorial.
He said: ‘The judge is in control and the judge decides what is to be determined, what is the evidence that is necessary for that decision to be made and how it is to be tested before the court.’
He proposed putting in place rule and practice direction changes relating to the use of experts, and said materials would also be provided for the court, which judges and magistrates can rely on without resort to expert evidence.
Ryder said the changes did not indicate that that experts are unnecessary, but rather that they are ‘misused and over used’.
He added: ‘There is a place for independent social work and forensic experts to advise on discrete issues that are outside the skill and expertise of the court or to provide an overview of different professional elements in the most complex cases.’
Ryder was outlining the timetable for the change process to prepare for the unified family court, outlined in the Crime and Courts Bill, which was laid before parliament in May.
He described the change as a ‘once-in-a-lifetime opportunity to create and fashion a court in the image that you and I want’.
The new court will launch after the summer of 2013 and said Ryder, it ‘will be a vehicle for a radical change of culture.’
He said the judiciary’s proposals for the changes to the family court system will be published at the end of July.
Ryder added: ‘Let me emphasise that it is not the judiciary’s purpose to undertake a reform programme for government. The proposals for change will be the judiciary’s and will be independent of government.’
But he said the judiciary should take on board the government’s reforms and plan to ensure that there is a ‘coherent process’ at the end of the various legislative changes.
Go to the judiciary website to read the full speech.
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