VULNERABLE ADULTS: 18 days to C-Day

Consultation on Family Procedure Rules 2010 amendments

Family Procedure Rules Committee (‘FPRC’) have produced a draft set of rules and put them out for consultation. The subject of the consultation is the considerable needs of (1) children and (2) ‘vulnerable’ individuals (ie parties’ and witnesses) in family proceedings….

The committee wanted ‘two months’ (see their minutes of 15 June 2015) for the consultation. Whoever organised the sending out of documents to support this plan gave us all seven weeks for reply; and that included almost all of August. The government’s own guidance to its civil servants says that – generally speaking – two months is a good period, and that in computing that period August should be left out. The consultation period should therefore count as starting from today (1 September 2015). On that basis 20 working days remain (excluding 25 September 2015, the date the consultation closes). Today is C-Day minus 20.

FPRC does not have to consult (R (ota Mosley) v London Borough of Haringey [2014] UKSC 56, though modern public authority administration is expected to make some efforts at least to appear to consult. FPRC – or its supporting civil servants – could have followed their own resolution; and they could have complied with Government ‘principles’. FPRC and its civil servants do not add to their respect in the eyes of those concerned with family law.

An intensely serious subject

This is an intensely serious subject for two categories of very different – but often disadvantaged – users of the family justice system. Our family law civil servant’s adoption of so short a period for consultation is a kick in the teeth for those affected – children and vulnerable adults; and it shows a lack of respect for consultees. And all this, it must be recalled, from a ‘justice’ committee which includes some very senior judges. The President, Sir James Munby P chaired the meeting which signed off the draft rules; and the scheme was promoted by Ryder LJ.

In the days till end of the consultation I shall endeavour to summarise some of the main proposals. In particular, I shall ask to what extent measures already exist within the common law. I shall ask whether yet further duties heaped onto judges is really good for delivery of fairness. I shall raise the question: who is to pay for some of the ‘measures’ (especially in private law proceedings). I do not believe the proposals have been properly costed; and yet the draft rules were agreed upon only a week after the Court of Appeal had poured a large bucket of cold water on the idea that HM Courts and Tribunal Service could be ordered to fund an advocate to assist the court under Matrimonial and Family Proceedings Act 1984 s 31G(6) (see Re K & H (Children) [2015] EWCA Civ 543 (22 May 2015)).

Without proper state funding parts of the proposed scheme will be still-born; and those who surfer for that will be those who most need protection within the scheme which so inadequately provides for them now.

David Burrows

1 September 2015

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