Family law groups have warned that the government's plan to impose a 26-week time limit for courts to conclude care cases is impractical in most cases and constitutes ‘potentially unlawful interference with judicial discretion’.
Giving evidence to the justice committee, the Law Society, Family Law Bar Association (FLBA) and Association of Lawyers for Children accepted that unnecessary delay is harmful to children, but opposed the setting of an arbitrary time limit.
Co-chair of the Law Society’s family law committee, Naomi Angell, said 26 weeks is ‘inadequate’ for most cases.
In written evidence to the committee the Society said: ‘Care proceeding cases are often complex, dealing with vulnerable children and parents, requiring concomitant assessments and sometimes running in parallel with concurrent criminal proceedings.’
It added: ‘Cases involving complex fact-finding, those involving large families or absent family members, or where a child has complex medical needs, such as a disability, will rarely be resolved in under 26 weeks.’
The judge in charge of modernising the family justice system, Mr Justice Ryder, told the NAGALRO conference last month that data being collected from the courts shows that the 26-week timetable is only achievable in about 30% of cases.
Angell told the committee that the focus had to be on setting a timetable that is appropriate for the individual child concerned and their circumstances.
The proposed legislation allows for extensions of up to eight weeks in exceptional circumstances. Angell warned that a failure to provide guidance to ensure consistent application of judicial discretion could lead to satellite litigation.
Jane Bazely QC, from the FLBA, warned that the need to come back to court every eight weeks to seek an extension would increase delays and the burden on the judiciary.
She stressed that if one could not ensure judicial continuity at each hearing, there was a risk that wrong decisions would be made.
Bazely said further delays would result from the fact that, due to the deadline, cases could not be listed beyond 26 weeks. So, if a case goes beyond that time it effectively loses its place in the queue.
In written evidence to the committee, the FLBA identified 19 factors that created delay in the system and said that the proposed time limit is ‘not a magic bullet’.
It warned that the system is ‘already in crisis’ and that if the limit is implemented without the causes of those delays being addressed, judges will have to make decisions on the basis of incomplete or inaccurate information.
Bazely told the committee that delay could be ‘purposeful and necessary to ensure a just and fair process’ in cases where, for example, specialist expert reports were required or where parties had learning difficulties.
Those who find themselves facing care proceedings, said the FLBA, require ‘actual justice as opposed to quick justice’.
Co-chair of the Association of Lawyers for Children, Martha Cover, told the justice committee it is fine to have a target, but the 26-week time limit could not be a deadline.
To do so, she said would be a ‘potentially unlawful interference with judicial discretion and the rights of the children and parents to a fair trial’.
Cover was also concerned that the language used in the draft legislation in relation to extending the 26-week timeframe undermined the principle that the welfare of the child is paramount.
She said courts are only required to ‘have regard to’ the welfare of the child and need only extend the time limit if it considers this necessary to resolve the proceedings ‘justly’.
Cover told the Gazette: ‘The word "justly" goes back to the overriding objective in the family procedure rules, which is concerned with saving time and money.
‘It drives a coach and horses through the paramountcy of welfare.’