Bloomsbury Family Law Conference: The Challenges facing Family Lawyers in the 21st Century

It is an honour to be invited to give the keynote address at the start of the very first Bloomsbury Family Law Conference. Bloomsbury Publishing are to be congratulated for picking up the baton by organising this major one-day event with an impressive range of speakers looking at all aspects of family law.

The topic, ‘The Challenges facing Family Lawyers in the 21st Century’ is a broad one and, whilst it may not be possible to do more than simply list some of the likely challenges in the course of this 20-minute address, it is right that we should occasionally take time to stand back and regard the wider landscape within which we all operate.

The first ‘challenge’, and one to which I will devote more time than any other, is a matter that I suspect is currently only in the peripheral field of vision, if at all, of many family lawyers. That this is so is understandable as, save for the existence of the current court ‘Reform’ programme, little has been known of the detail until recent times.

The Reform programme, which started in 2016, is an ambitious £1 billion scheme aimed at delivering by 2020 a court and tribunal system which functions in a manner compatible with the digital age, with paperless court cases and court procedures that may be undertaken or accessed virtually rather than in person.

Whilst around 25% of the £1bn is ‘new money’ targeted at the criminal process, the remaining 75% is to be generated within the courts and tribunal system by selling off existing buildings and reducing staff numbers. The clear and stated aim is that those buildings that remain will be brought up to a decent condition for the staff, public and judiciary who use them. It is, to my mind, most important that this stipulation is held to as the Reform programme moves forward.

In order to prime the financial pump to pay for the major work now being undertaken to develop the new software and programmes, the process of selling off parts of the estate has already begun, with the result that many tribunals and some courts are now being re-housed in the buildings that remain. It is thus now not uncommon, for example, for tribunals to sit in magistrates’ court buildings.

I hope that I do not oversimplify the various elements of Reform by saying that they can be divided into three broad categories:

  • Online processes
  • Paperless cases
  • Virtual hearings.

So far as online processes are concerned some have already gone ‘live’ with, in our field, the national rollout earlier this month of Online Divorce applications which permit an individual to issue a divorce petition by completing an online form. The form has been constructed in plain language and in a manner designed to minimise mistakes. The MOJ Pilot reported a reduction of 95% in the number of Petitions that had to be returned for the correction of errors. The online Probate programme is at a similar stage, with online applications for private and public law children cases, together with applications for financial provision, to follow in due course. You will form your own views of these new processes, but the feedback thus far from those who have tried them out is universally positive.

Turning to the second broad category of Reform, the aim is for all family cases to be conducted from a paperless court file and paperless hearing bundle. The experience of the various Family Courts in different parts of the country which are already using paperless bundles is being evaluated. The savings in terms of time, money and judicial patience (!) to be gained from paperless bundles are easy to contemplate. For many of us this new way of working may be a challenge, but it is a challenge that we will have to meet and overcome, for the message about all of these reforms is not that they are merely a suggestion for consideration, or an option; they are changes that are taking, and will take, place. The question for all of us involved in working in the system is not ‘whether’ but ‘how’ to make these processes work to the best advantage for clients and the system as a whole.

In this regard we may be comforted by the experience of the criminal court which is ahead of the game in terms of paperless working. All documents in a criminal case are now loaded onto a ‘common platform’ which can be accessed by the parties, their lawyers and the court both during and outside the hearing. A criminal trial now takes place on the basis that any document that is referred to is viewed on screen. Again, you may have your own experience of this system, or know others who do, but all the reports that I have seen have been very largely positive.

From my perspective, the development of online and paperless processes is sensible, timely and welcome; the same unqualified response does not, however, apply to the concept of hearings in family cases being conducted remotely via video or other online means. Hearings in which the parties engage with the judge by telephone or video may work appropriately and, indeed, well in many civil cases, particularly for case management hearings or small claims disputes. The same does not necessarily follow even for short hearings in family cases. There is a need for great caution as we begin to contemplate any significant extension from the limited current use of video conference hearings.

The President, Sir James Munby, has recently set the tone for the approach to family cases in a statement on the Reform programme that has been circulated to the judiciary:

‘While fully video hearings (where all participants including the judge or magistrate join through technology) are being developed and piloted in other jurisdictions, it is not envisaged that these hearings will initially be as widely rolled out for family cases. There will be scope, as at present, for their use in certain case management and directions hearings. The development of online hearings will need to be carefully evaluated and very careful thought given to which types of hearing in which types of family case will or will not be appropriately conducted online.’

All who have experience of family cases, of whatever type, will know that these cases are dynamic in a manner that is unlike any other form of litigation. That may be because, in contrast to criminal and civil cases, where the focus is on what has happened in the past, a family case is always about arrangements for the future, whether they relate to children, money or personal protection. There is a need in family cases for the court to engage directly with the lay parties at each hearing which is greater than that which may be necessary in civil cases, and such engagement, in my view, will normally require all of the key human beings, including the judge or magistrates, to be in the same room for the hearing. We therefore need to proceed cautiously, as Sir James has advised.

The Reform programme is all encompassing and obviously includes many other detailed changes, over and above the points that I have just headlined, with many of them being welcome – for example the acceptance that the current buildings and electronic equipment needs to be upgraded.

The final point that I now mention is, however, one about which there is a real need for caution and concern. If, as is the case, court buildings are to be closed, with hearings being centralised in the remaining centres on the basis that many more cases will be conducted remotely, and if, as I believe is the case, there is a need for most family hearings to remain face-to-face, rather than virtual, encounters, it is necessary to ensure that the closure of buildings does not reduce an individual’s access to local family justice below an acceptable minimum level.

Talk of virtual hearings, leads me to my second topic, namely ‘transparency’. The link being this tantalising general question: ‘how is the public going to be able to observe an online hearing in a manner that is comparable to the present facility of being able to attend and watch an open court hearing?’.  This tricky problem is not, as we all know, the most pressing problem relating to Transparency in the family jurisdiction. It is an issue that is under consideration and I simply leave it hanging in the air for your consideration at this stage.

This is not the place for me to set out my own views on Transparency. It remains appropriate to await guidance as to the next stages in the development of transparency in the Family Court, which The President has indicated is to be forthcoming before his retirement in July.

Transparency however remains, as it has been for the past decade, a pressing challenge for the Family Justice system. Meeting any challenge, as we all know, is greatly assisted by gaining as full an understanding of the problem as possible. In this regard the past two weeks has seen two very welcome developments. The first is the publication, by Bloomsbury, of ‘Transparency in the Family Courts’ written by Julie Doughty, Lucy Reed and Paul McGrath and drawing on the substantial experience of the excellent ‘Transparency Project’.

As I have written in the foreword to this most welcome new book, “affording due transparency to family proceedings has turned out to be, as Sherlock Holmes might say, ‘a two-pipe problem’ which has, at its core, two entirely conflicting policy drivers: the need for the public to know what goes on in their name in the Family Court and, conversely, the need to protect the privacy of individuals at the centre of any particular case. Whilst it may not have delivered a solution, the title of the 2006 Government consultation paper issued by Lord Falconer was spot on target – ‘Confidence and Confidentiality’ – in highlighting the conflicting needs of public confidence and private confidentiality”.

Our understanding of the issues that lie beneath this conundrum has been significantly enhanced by the second recent development, namely the Inaugural Nicholas Wall Memorial Lecture given last week by Baroness Hale on the topic: “Openness and Privacy in Family Proceedings”.

I will not attempt to offer a summary of Baroness Hale’s text, which can be accessed on the Supreme Court website[1], but, whilst she was clear in identifying the various factors that are in play, including the imminent and, as yet, little understood, impact of the GDPR [General Data Protection Regulation], Lady Hale does not claim to offer a solution.

To my eyes, over the years the understanding of what Transparency may require has developed. Initially, many of us will have held an unduly simplistic view that the issue was to be resolved in a binary manner by either letting the press and the public in to the Family Court, or keeping them out. Thanks to the ground-breaking and inspired work of The Transparency Project, and now this book, Transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry.

In this regard, there may be a need for us to give greater publicity to the fact that many family court judgments, and particularly those in cases of public interest, are readily available for anyone to read on the internet at the British and Irish Legal Information Institute [‘BAILLI’] website. Another ‘challenge’, to which I will only make this passing reference, arises from comment on social media, with the recent Alfie Evans case simply being an example. I mention this in the context of transparency and the availability of judgments on BAILLI to echo and endorse the observation of journalist Michael Skapinker writing in the Financial Times on Tuesday 8th May where, after praising the deep compassion of the English courts he stated:

“You may disagree with my assessment, or with the tragic outcome. But, before you do, I would ask you to read Mr Justice Hayden’s original ruling, the judgment of the Court of Appeal, the decision of the Supreme Court, Mr Justice Hayden’s subsequent judgment and the final decision of the Court or Appeal – or at least one of them.

An oddity of our time is that, while so many people form their judgments from tweets, Facebook posts and television news, the original documents have never been more accessible.”

I have dwelt on these two ‘challenges’ at greater length because of their importance and, in terms of the Reform programme, because it is clear that the time has now come for the profession and the judiciary to become engaged in the detail of how these changes will work in practice in a way which been neither necessary nor possible hitherto. I will now turn, in shorter terms, to some other items on the list of challenges facing the modern family lawyer, and for that matter, any would-be future President of the Family Division.

The topics that I will now mention are:

  • Legal Aid, recruitment and morale
  • Brexit
  • The Care Crisis Review.

There are, of course, other challenges out there and I should say that I am deliberately focussing on ‘challenges’ rather than, more positively, considering areas of possible development or law reform. These latter matters are for another day and, to an extent, have been covered in my Bridget Lindley Memorial lecture in 2017 and the Address to the NAGALRO conference that I gave earlier this year.

Although, sadly, there is little new to say on the topic of Legal Aid and Family Law I wish, as the incoming President of the Family Division, to state publicly how conscious I am of the impact that the removal of Legal Aid has had upon private law applications and of the continued and sustained impact that the very low rates of remuneration has had on those areas of Family Law which remain in scope for Legal Aid. This impact is felt not only by the lawyers who are directly concerned with the financial effect, but also by the parties to proceedings, expert witnesses, other professionals and, of course, the magistrates and judges who hear the cases. Morale in the system is at a low ebb and recruitment is difficult. I am particularly concerned that we can continue to draw young and talented lawyers into publicly funded Family Law work; I am concerned at the apparent drying up of experts willing to make themselves available to act in family cases; and I am very concerned about judicial recruitment and judicial morale. This latter judicial element is one that I see at the most pressing challenge that will face me when I take on the role of President.

It is not for a judge to make political points and I do not seek to do so. I merely record my concern at the impact of these matters on the system. It is for those of you in practice to make the case with government, and this is particularly so at a time when the MOJ is undertaking a review of Legal Aid provision in family law. In this regard, the work of the Legal Aid Practitioners Group [‘LAPG’] is, as ever, to be noted for its value and importance in providing an expertly informed and well-reasoned voice for the profession on all Legal Aid topics.

Brexit may mean Brexit, but what Brexit means for the Family Justice system currently remains unclear. Over time we have absorbed the structure and working of the Brussels II Revised Regulation into our thinking so that now the determination of which European court may have jurisdiction in a family case is well understood and, normally, easily determined. How issues of inter-state jurisdiction are to be determined if BIIR no longer has direct application to the UK post-separation is therefore a matter that requires a high level of thought and concern. It is an issue which is being given active and anxious consideration by Lord Justice Moylan, as Head of International Family Justice, and others. We should be grateful that the matter is in such experienced and wise hands.

More widely, it is possible to contemplate a range of issues in family law cases that may change as a result of Brexit. In an address aimed at highlighting forthcoming challenges for Family lawyers, it would be impossible not to mention Brexit, but today, there is neither the time nor the information necessary to tease these issues out any further. That task must await the outcome of the current negotiations and then, no doubt, very rapid evaluation thereafter.

The Care Crisis Review which is currently being undertaken by the Family Rights Group at the invitation of The President and which is generously funded by the Nuffield Foundation is a most important project. Its aim is to calibrate and then understand the substantial rise in the number of care order applications that are being made to the Family Court. For example, in 2010, at the time of the Family Justice Review, when the concept of a deadline of 26 weeks on proceedings was promulgated, the annual number of applications for care orders was in the region of 9,000. In the year April 2015 to March 2016 this figure had gone to 12,792, the following year it went to 14,599 and the figure for the year to March 2018 is 14,207 – these latter two years represent an increase of well over 50% on the 2010 figure.

The courts had accommodated the radical change in the focus and process of public law proceedings that followed the recommendations of the Family Justice Review and were, to a large measure, hitting the statutory 26-week target for processing these cases, thereby more than halving the average length of time that had hitherto been taken. This most impressive turnaround was achieved by the sheer hard work and determination shown by all those involved. However, at the very moment when this success was being accomplished, the number of cases went up so that professionals in all parts of the system, whose feet were metaphorically hard down on the throttle, were now having to process a substantially greater volume of cases within the same time frame and with the same personal and professional resources. Hence Sir James’ appropriate use of the word ‘crisis’ and his candid and correct acknowledgement that the system did not understand the causes or what might be done to alleviate the critical impact of the rise.

Whilst I am the judicial member of the current Review panel, it is not for me to reveal in this address what, if anything, the review has discovered; that must await the formal launch of the Care Crisis Review on 13th June 2018. What is, however, clear is that there is no one specific cause for the rise and, certainly, no silver bullet that can be deployed to address it. A range of external factors each seem to produce the same default consequence, namely a decision to issue care proceedings.

Considering and then, hopefully, implementing the recommendations of the Care Crisis Review Report once it is available next month will certainly provide me with an immediate ‘challenge’ for the first months and more of my term of office. But, the need to address this crisis is one that involves all of us, practitioners, social work professionals and judges, and so I hope that you, too, will regard this as one of your professional challenges for the autumn.

I hope that what I have said has not unduly depressed you! Challenges of one sort or another will always be with us and we must meet them as best we can. They should not detract from the commitment that I suspect each one of us here today has to the practice of Family Law. We should never lose sight of what it was that drew us into Family Law in the first place: the interest in the cases, in the people and the law, coupled with an understanding of just how important Family Law issues are for each individual at the heart of a family case and for society in general. Most of the lay parties in a family case will probably be before a court for the only time in their lives and for each the issues involved are likely to be of the utmost important, relating to their child or to their future financial arrangements. At times being a Family Lawyer is a thankless task, but let me redress that in a small way this morning by saying ‘thank you’ to each of you for choosing to practice Family Law! I am looking forward to working with you as together we face whatever challenges may lie ahead.

[1] https://www.supremecourt.uk/docs/speech-180510.pdf

 

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