‘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.
Comments
The very word Inquisition and
The very word Inquisition and its contained energy tells it all.
Family law courts are Inquisition courts already- star chamber with the witch finders and the General-old Jesuit system.
“The new court will launch after the summer of 2013 and said Ryder, it ‘will be a vehicle for a radical change of culture.’ ”
Oh it surely will be a change all right. Right back to the dark ages.
I can smell that old Inquisition witch trial stench brewing already.
So where is the right to equal arms?
Many service users already suffer legal abuse syndrome.
“LEGAL ABUSE SYNDROME (LAS) is a form of post traumatic stress disorder (PTSD). It is a psychic injury, not a mental illness. It is a personal injury that develops in individuals assaulted by ethical violations, legal abuses, betrayals, and fraud. Abuse of power and authority and a profound lack of accountability in our courts have become rampant.”
Inquisitorial proceedings and party status
In a real child-centred system, you would not have a system where the competing claims and counter-claims of parents set the stage for a court hearing. You would substitute a process where the voice of the child was heard first and last, and the adult players gave their opinions as witnesses.
Of course such a process would require significant cultural and statutory changes. First, you would need a new mechanism in which, when an issue was raised that concerned a child, the child or children would be represented as a matter of course. The solicitor for the child would take charge of the case, contacting the parents or other witnesses with a view to taking statements from them. The child’s solicitor would share the various views and arrange a moderation meeting where appropriate. Whenever possible, out of court agreements would be forged. Where not possible, a judge would adjudicate on the basis of the evidence – oral and written – the parents attending simply as witnesses.
The children’s guardian and the guardian’s solicitor would have a paramount duty to the child, and to the court from whom they received their appointment. Clearly, there would be a need for oversight of their functions and role, but this could be provided by a professional body for guardians and, of course, the judge – who would have final case-management responsibility.
Many parents would be greatly relieved by such a change. On the whole, parents do not love the adversarial court process, and those that do should not dictate a system for those that do not. Furthermore, most parents do not relish the considerable cost of representation in a battle concerning their children. What they do want is someone to help them formulate a realistic position that has a chance of favour with a judge, the right to answer any concerns about their ability to parent, and the opportunity to be heard before a decision is made.
Whether represented by lawyers, or litigants in person – parents, grandparents and other family members make bad case managers. Solicitors representing both public law and private law clients sometimes fare little better and miss or avoid opportunities to re-direct their clients’ energies away from conflict into the constructive compromise that courts seek.
The downside of these radical ideas is that thousands of family lawyers would face a lean time. The plug pulled on the stream of public funding, and their role restricted to assisting parents as witnesses, the lawyers would no longer feature as visible players in the process. However, the public costs saved could be diverted to fund the guardian’s role, ensuring that public money is put where it will have the best advantage – to enable the interests of children to take centre stage.