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Justice Select Committee Report on Family Courts

24th May 2012

Jonathan Djanogly responds to a Westminster Hall debate on the Justice Select Committee’s report “Operation of the Family Courts”.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): There have been relatively few speakers this afternoon, but the speeches have been of a very high quality. I congratulate the Justice Committee and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing the debate. I am grateful to all right hon. and hon. Members for their valuable contributions. The Government recognise that it is simply unacceptable that some children wait more than a year for a decision to be made about their future and that some parents can use the court process to inflame further conflict with their former partners. The hon. Member for Hammersmith (Mr Slaughter) referred, rightly, to the terrifying consequences that can arise. That is why our programme of reform, underpinned by the findings of the Justice Committee’s report and the family justice review, is so important.

I shall deal first with the points made by my hon. Friend the Member for Birmingham, Yardley (John Hemming). He made a significant contribution on a topic in which he has consistently shown significant interest. To take up his concern about the FJR’s legitimacy, I can tell him that it did have cross-party support, having been initiated by the previous Government and continued by the current Government. David Norgrove consulted very widely here and in other jurisdictions. The Grandparents Association, which was the example that my hon. Friend gave, submitted evidence and that was certainly considered. I simply cannot accept that the FJR was constrained in the evidence that it sought or considered.

John Hemming: My argument is that the panel itself did not have someone from Families Need Fathers, the Grandparents Association, Justice for Families or any other of the organisations that represent those people to whom things are done.

Mr Djanogly: My hon. Friend makes his point. He will appreciate that, on that basis, many hundreds of organisations could have been included in the body.

Two key pieces of legislation will support our proposals for system change. The children and families Bill, announced in the Queen’s speech, will help to deliver the Government’s commitment to supporting children and families by making it easier for parents to share caring responsibilities and by supporting some of the most vulnerable children, including those in care or whose parents have separated.

John Hemming: I thank the Minister for giving way again. Will the Government consider the proposal from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) of having a default position in the children and families Bill so that there is no need to go to court to establish a default position?

Mr Djanogly: I will come on to that.

The Crime and Courts Bill, introduced on 10 May, contains provisions that will establish a single family court. That is a direct response to a recommendation made by the family justice review. The creation of a single family court will simplify the court process and make it more accessible for families using the system. It will be more transparent and will facilitate the allocation of family law cases in the most effective and efficient way.

In the area of public law, we have already made a commitment to implement many of the review’s recommendations. Where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay. That is why we intend to introduce a six-month time limit for all bar exceptional cases. I can confirm to my right hon. Friend the Member for Berwick-upon-Tweed that that is a limit, not a goal. Where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the children and families Bill.

To answer my right hon. Friend, who mentioned time limit delays, the judge will have to give reasons for the delay in open court. In that way, a picture of performance and weaknesses in particular parts of the country will become apparent and will build up over time, which will mean that action can be taken to address a particular problem in a particular area. There are a number of steps to support that.

The Justice Committee and the family justice review, and my hon. Friend the Member for Birmingham, Yardley, highlighted the need to cut the number of expert reports used in court proceedings.

John Hemming rose —

Mr Djanogly: Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

John Hemming: I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS.

Mr Djanogly: I will come on to CAFCASS in due course.

My hon. Friend said that a default residence contact position would avoid the need for court orders. The problem with that is that it is a one-size-fits-all approach; it would not focus on what the child needs. A very young child may have quite different needs from an older child, for example. If parents are in dispute about child arrangements, and the matter requires a court decision, it is right to focus on the child’s needs at that point. That is the current position and we intend to retain it.

John Hemming: The point is not that we should have an unchangeable default position, but that we should start from a position whereby it is the duty of both parents when they separate to maintain contact with the child. The difficulty is that the current position often creates a de facto situation; basically, residence moves with the child and the legal process takes some time to catch up, but in the meantime, in very traumatic circumstances, the relationship between the child and one of the parents has decayed. It is not that the solution is inflexible, but that we start from a minimum position that could be varied.

Mr Djanogly: I hear what my hon. Friend says, and I am not entirely sure that it is incompatible with what I said. I will take a further look at that.

We must improve the quality of the submissions made to courts by local authorities. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. We will strip out bureaucracy and duplication. On care planning, we will introduce legislation through the children and families Bill to make it explicit that the court should focus only on issues essential to its deliberations. We will also remove the bureaucratic processes connected with the renewal of interim care orders and interim supervision orders. Where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.

That work is supported by Her Majesty’s Courts and Tribunals Service, which has allocated a further 4,000 sitting days to the county court exclusively for family work, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out. That is an increase of 8,000 extra county court sitting days compared with 2009-10 and a major increase in family court capacity. That somewhat disproves what the hon. Member for Hammersmith said about Government cuts. We have not been cutting the service, but have been significantly increasing the resources added to it. Her Majesty’s Courts and Tribunals Service has ring-fenced the family allocation in the magistrates courts, ensuring that days intended for families are not lost on criminal hearings.

All right hon. and hon. Members will agree that simply allocating more court days will not solve the long-term issues identified by the family justice review. All the work will be underpinned by more robust data, an issue highlighted by the Justice Committee last year, as my right hon. Friend pointed out. I agree that it is key. Without figures, we can only reform by way of anecdote based on single issues. That is not an adequate position.

With judicial support, Her Majesty’s Courts and Tribunals Service is rolling out a new management information tool. For the first time, it will track the care case process from start to finish at court level. Although it applies only to those cases entering the system from 1 April, it will provide important data about where delays are currently occurring in the system and why they have arisen. Importantly, the tool will drive changes in behaviour by allowing local areas access to their own data, so that information can be used to identify performance barriers.

John Hemming: That would be an excellent tool. Will the tracking system track the release of the printed judgment to the parents, who often do not receive a judgment on which they can appeal?

Mr Djanogly: I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.

Sir Alan Beith rose —

Mr Djanogly: I will just finish this point. This change is not about equality in the time that a child spends with each parent after separation. Every family and every child’s circumstances are different and the courts will continue to make decisions on that basis.

Sir Alan Beith: There have been quite intensive discussions about this issue in government. In trying to use the law as a signal, there is a danger that the courts will be obliged to take into account a further element of complexity when making a judgment. The signal that it gives some parents in dispute may be that there is another point on which they can engage the court in order to keep the case going. It is more likely to do that than to give a signal to parents about what they themselves should do.

Mr Djanogly: The right hon. Gentleman makes a fair point. This was what came up in Australia. The Government have looked carefully at the lessons of the Australian experience of legislating in this area, which was highlighted by the family justice review. Direct comparisons with the experience in Australia are misleading; it is certainly not our intention to mirror the structure of the Australian legislation or to create new layers of complexity in our existing system.

Contributors all mentioned the importance of early intervention. I agree with my right hon. Friend that it is an essential component in solving this issue. The Department for Work and Pensions, the Department for Education and the Ministry of Justice are working closely together on this so that a parent’s first port of call will be an online hub that will provide practical information and advice and will signpost appropriate services.

We have introduced measures to strengthen consideration of mediation and to explore how that can work alongside parenting programmes and other interventions to help parents focus on a child’s needs. I will say a bit more about mediation later. In addition, we are working to develop parenting agreements as a tool to help parents agree arrangements that are child focused and practical.

DfE is providing an early intervention grant worth about £2 billion, which is flexible funding for local authorities to spend on their early intervention priorities from Sure Start through to crime prevention. The Justice Committee will know about the Youth Justice Board and the custody pathfinder projects, which give pilot areas custody funding up front for the under-18s. That will incentivise local authorities to intervene early before young people become serial offenders.

Many other cases could be settled away from court. Too many people go to court to resolve their private disputes and fail to grasp the fact that the court is required to focus on the child’s welfare needs. That may mean that neither parent is happy with the decisions that are made. For many such parents, the family courts are not the best way of settling disputes about a child’s future. Mediation can be quicker and cheaper, and can provide better outcomes, especially if compared with drawn-out court hearings. It is important that mediation is considered at the earliest opportunity before positions become entrenched. An amicable solution is better than a litigious one.

Referrals to mediation in publicly funded cases are up by nearly 12% since the introduction of the pre-application protocol last April. However, I remain concerned about the protocol’s effectiveness in privately funded cases, and there is a need to tackle inconsistencies in approach across the courts. That is why we will make statutory changes to make it a prerequisite that anyone who wishes to begin court action must first attend a mediation information and assessment meeting to find out about and consider mediation. We remain committed to make public funding available for mediation through legal aid for those who are eligible and expect to fund an additional £10 million for mediation services.

I should point out to the hon. Member for Hammersmith that the Government have no plans to stop making available legal aid for children where they are a party to family proceedings. Various hon. Members mentioned litigants in person. We accept that the reforms will mean an increase in litigants in person. However, unrepresented parties have always been a feature of the justice system—some because they cannot afford representation and others because they choose not to be represented. Paying for a lawyer, whether out of private pockets or public funds, is not always necessary. Judges make significant efforts to assist litigants in person, explaining procedures and what is expected of them. We estimate that about 40% of private law children’s cases involve one or more litigants in person. The proportion in divorce cases is much higher than that.

Mr Slaughter: Will the Minister accept that replacing advocates with litigants in person can typically increase the length of a case by up to 100%. If he does not accept that there is robust evidence of that, should the Government not collect such evidence and make their assessment of what the changes will mean for the length and cost of a case?

Mr Djanogly: From a review of the literature, we know that sometimes these cases can take longer, but not always. Sometimes they are actually quicker. The picture is complex. However, we expect fewer cases to come to court in future because there will be 10,000 extra family mediations, which will help offset any additional burdens on the courts from dealing with litigants in person. Overall, we do not expect a likely increase in litigants in person to lead to significant additional burdens on the court.

In recognising that there is an existing problem with litigants in person—no matter what happened in the Legal Aid, Sentencing and Punishment of Offenders Bill—we are seeking to improve the system by introducing single family courts, which will provide one route into the system that people can understand; by changing court processes so that they are easier and quicker to understand; by introducing a new child arrangement order; by creating processes to deal with breach of order more quickly and effectively; by simplifying and streamlining the divorce process; and by improving the information made available to the public. In addition, support for separated and separating parents will be provided through new web and telephone services led by the Department for Work and Pensions, which will provide trusted independent information suited to people’s needs. The web service will be commissioned in 2012 and the telephone service in 2013.

Other practical steps include welcoming the Civil Justice Council’s report on self-represented litigants that was published late last year. It contained a number of practical and pragmatic recommendations, many of which are applicable to the family as well as the civil courts. We are working with the CJC and the Family Justice Council on how to take these matters forward.

Recommendations include guidance to court staff on how to deal with unrepresented parties and information about pro bono assistance. We have also made funding available to support this work, some of which is being used to support the expansion of the Personal Support Unit, a charity based in the Royal Courts of Justice, which provides volunteers to accompany people to court and to fund guidance produced by not-for profit organisations specifically tailored to unrepresented parties. We envisage the funds being used on online tools, guides to the court process, including on video content, and other initiatives, and we are working with relevant organisations such as the citizens advice bureau to that effect. These will all be in place before the legal aid reforms take effect. These changes are radical and cannot happen overnight, nor can they happen in a family justice system that lacks leadership and coherence.

We agree with the family justice review and with my right hon. Friend the Member for Berwick-upon-Tweed that transferring CAFCASS to the Ministry of Justice will bring court social work closer to the courts and make it easier to improve the whole system’s performance. We will transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice by the end of this spending review period. I should say that CAFCASS’s performance has improved significantly in recent times, but I agree with him that moving CAFCASS will not be enough; integration of services will be key.

Crucially, we are already putting in place the governance arrangements that will drive those changes. We have established the Family Justice Board, which brings together senior figures in the core organisations within the family justice system. The board will give family justice national leadership and visibility, and will be led by an independent chair and supported by a performance improvement sub-group and a young people’s board. We are also establishing new local family justice boards to drive momentum at a local level. The new national governance arrangements will provide a more joined-up family justice system and ensure consistency between national strategy and local delivery. Together, the new structures will have a clear remit to focus relentlessly on system performance.

[Mr Joe Benton in the Chair]

In taking forward work to improve the system’s efficiency and effectiveness, we must not overlook the need to make it more responsive. We are considering how we can simplify processes further and provide practical information to help unrepresented parties navigate their way through the system, as I described earlier.

My hon. Friend the Member for Birmingham, Yardley mentioned CAFCASS and guardians, in the context of the child’s voice being heard. We agree with the FJR’s strong views on the centrality of children’s interests and endorse the panel’s proposals on listening to children’s voices and ensuring that their wishes and feelings are taken into account. We will put the child back at the centre of the system. We take seriously our obligations to promote and implement the UN convention on the rights of the child, and throughout our proposed reforms, we will introduce practical measures to ensure that children’s voices are heard. The Family Justice Board will have a key role to play in supporting children’s right to have their voices heard, which is why one of its
sub-groups will be a young people’s board, building on the benefits gained from the CAFCASS young people’s board.

There has been considerable debate over the years about the opening up of family courts. Slightly different positions have been stated today by right hon. and hon. Members, whom I accept all care passionately that we get it right. Understandably, there are many different views on the subject, and there is a balance to be struck between confidence and privacy on one hand and publicity on the other. The challenge is balancing the need for public scrutiny with the parties’ need for privacy. I accept that the current position is unsatisfactory.

The Government’s response to the Justice Committee’s report last year, as my right hon. Friend the Member for Berwick-upon-Tweed restated today, accepted the recommendation that the provisions in part 2 of the Children, Schools and Families Act 2010, which allow for greater reporting by the media, should not be enacted. As the Committee recommended, one lesson learned from the outcome of the last attempt to achieve transparency in the family courts is that a solution to this important and contentious area of policy should not be rushed. Given the issues at stake, we will work to find ways to achieve greater transparency in the family courts.

The work that the Government are doing to implement change in response to the Justice Committee’s report and the recommendations of the family justice review represents a broad and ambitious programme of reform, as I hope I have explained to some extent today. The programme that I have outlined shows our commitment to providing a modern family justice system where delay is the exception rather than the norm; one in which people are supported to resolve disputes themselves as early as possible and away from the court if possible; one that is coherent and well led by the Family Justice Board, with buy-in from all partner agencies: in short, a family justice system that children and families can trust and rely on. I know that all right hon. and hon. Members share that objective, and I am grateful to them for their contributions to this debate.

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