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Inquisitorial judges at heart of family reform proposals
Greater case management by judges is at the heart of the judiciary’s proposals for the modernisation of family justice, published today.
Mr Justice Ryder, the judge in charge of the family court modernisation process accompanying the Crime and Courts Bill, set out his plans to improve the workings of family courts this morning.
The bill currently before parliament provides for a new single family court to replace and simplify existing arrangements. Its launch will provide the vehicle for the modernisation programme.
The aim is for the court to have a new structure, with its work directly managed by the judiciary and where all levels of judge and magistrate are members of the same court, sitting as ‘judges of the family court’. The High Court will remain separate and its jurisdiction preserved.
The plan follows themes set out in a speech given by Ryder last month. These include proposals to manage cases closely, identifying key issues and making sure timetables are followed with parties penalised for failing to comply, and greater scrutiny of experts.
Under the new regime, judges will adopt an inquisitorial approach to family cases, limiting cross-examination by the parties themselves, to deal with the volume of litigants in person expected once legal aid is withdrawn for most private law family cases.
One of the ‘immediate challenges’, the report says, is how to develop effective methods of assisting litigants in person in private law cases while maintaining fairness to all parties. It says that a ‘consistent but firm approach’ will be developed to litigants, whether represented or not, to ensure that issues remain in focus and are addressed within the timetable set by the court, with sanctions including fixed costs being paid by parties for non-compliance.
A private law pathway will be published to describe what a court can and cannot do and how it does it. ‘In a conventional case there may be restrictions on the right of one party to cross-examine another, relying on each party having their say, then the judge identifying further issues and asking questions him or herself,’ it says.
One if the key aims of the changes is to reduce delays in the system, and essential to that will be more effective management of existing judicial resources with more continuity and better listing practices. To better manage public law cases, there will be rule and practice direction changes, known as pathways, relating to the use of experts and a timetable track which will presume that non-exceptional cases can be completed in 26 weeks.
A statement of principles of evidence to use in children proceedings will explain that other than adversarial fact-finding where necessary, the judge’s function in determining the welfare of the child is investigative.
Ryder’s report says that the judge is in control will decide what is to be determined, what evidence is necessary for that decision to be made and how it is to be tested before the court.
On plans for greater openness and transparency of the family justice system, Ryder says that arguments for the confidentiality of proceedings are balanced by arguments for the need for a family court to explain and demonstrate its decision-making.
Ryder’s recommendations were today endorsed by the lord chief justice Lord Judge. He said: 'The traditional model of the judge as a passive arbiter, holding the ring between the protagonists, allowing the parties to adduce whatever evidence they wish and however relevant it may be to the ultimate outcome of the case or not, will change.
'This process has been tried in the Crown court. Active case management is part of the judge's daily responsibility. IT has produced efficiency in the criminal justice process, without any consequent diminution in the quality of justice administered there.'
But he said that the ambition to reduce delay cannot be achieved by judges alone. 'Huge efforts will be required from the different parts of the system, including in particular Cafcass and local authorities. There will be a measure of shared responsibility for the improvement that we all require.'
Law Society president Lucy Scott-Moncrieff said, 'Effective case-management is vital to reducing delays in the family courts. Judicial continuity, specialisation and leadership are all essential to good case-management.
'Fast-tracking child care cases will help identify those cases which can be finished within the government’s proposed 26-week time limit. Delays also need to be reduced in cases where separating and divorcing couples are seeking the court’s help in making arrangements for their children.'
But she added: 'Achieving these aims without additional resources will be a challenge. The rise in numbers of unrepresented participants following the cuts to legal aid will put enormous pressure on the courts and the family justice system as a whole. There is an immediate challenge to develop effective methods of assisting parents without legal representation in private law cases.'
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