A letter from Philip Marshall QC
Philip Marshall QC, chair of FLBA, comments at http://flba.co.uk/blog/2016/10/07/flbmail-5-oct-2016/ on the recent ‘Fifteenth view’ of Sir James Munby, President of the Family Division (see eg http://flba.co.uk/downloads/ms_13993.pdf). The president’s short opening paragraph includes: ‘The fact is that we are approaching a crisis for which we are ill-prepared and where there is no clear strategy to manage the crisis.’
Philip’s comment on this diagnosis includes:
‘We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.’
I agree. Fairness – or justice – within the family courts (Family Division and Family Court) must remain an absolute. Justice in a ‘reasonable time’ (European Convention 1950 Art 6(1)) and that if resolution is delayed in children cases is generally to a child’s detriment (Children Act 1989 s 1(2)) must both remain part of the overriding objective of family law. But they are meaningless unless accompanied by real time-saving procedural proposals.
Case management: the key to saving time
Case management is the key; and Sir James is in a unique position to influence that, for he is both administrator and judge (a constitutional anomaly: both executive and judiciary; but for the present that is not an immediate concern). Other principles for avoidance of delay without sacrifice of fairness can also be identified. A few thoughts follow. Mostly these boil down to judges following the rules and law already there (or – as often happens – being urged by Sir James and the Court of Appeal so to do):
- Case management – This is critical: interventionist, firm, ‘robust’ (the modern cliché) – call it what you will. The judge can control progress of a case in a variety of ways, so long as fairness is not lost and judicial continuity is retained. (A commercial plug: I deal with this extensively in Evidence in family proceedings shortly due for publication by Family Law/LexisNexis). Proportionality must rule.
- Definition of issues for trial in a case – The most important case management question is to define the issues before the court so that everyone knows what remains to be contested and the evidence fairly required to deal with it.
- Relevance of evidence – The rule is that only evidence relevant to an issue is admissible; so judges (eg as part of case management) can firmly exclude what is not relevant to a clearly defined issue before the court.
- Legal representation – Legal representation can increase fairness, and – if self-control is exercised by family lawyers – it can save the court time. It should also promote settlement or definition of issues and pruning of irrelevant evidence.
- Mediation and settlement conferences – Mediation (Philip comments on settlement conferences in his letter) so obviously can save court time: where cases are settled (and many do if parties want them to); or if issues are narrowed by mediators. Mediation can only work properly if it remains voluntary; but judges can urge it upon parties.
And clarity: perhaps I am biased; but I also believe that a much clearer and better expressed version of our law – statute and rules – could save time. Less time would be spent getting it wrong, or on appeal to the Court of Appeal to explain unclear law. And clarity would certainly promote justice.
There is no magic in any of the thoughts above. All are there in the rules already. Fairness cannot be sacrificed by family courts on the altar of pressure of time; just as health should not be sacrificed to pressure of resources. That said, realities must be faced by all of us involved in family courts process.