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Trouble in the Courts

August 10, 2010

There is trouble in the family justice system in England and Wales. It is struggling and in danger of collapsing (or imploding – Mr Justice Wall)  in the face of a sustained increase in the numbers of child protection cases. Some blame the Legal Services Commission (LSC) for trying to reduce the Legal Aid budget and refusing to grant contracts to numbers of well-known family law firms of solicitors. Some blame Cafcass for failing to respond to rising demand and only providing a minimal service to vulnerable children. Some blame the courts themselves for prolonging cases by appointing too many experts. Some blame local authorities for being overly risk averse and putting too many cases before the courts.

Permit me to enlighten you. The present crisis is the result of a conspiracy gone wrong. In the early noughties it was clear to the LSC, to the Court Service and to Cafcass that each service was seriously underfunded and each was unlikely to be able to meet growing demands. In 2007/8 therefore ‘gatekeeping’ became the watchword – demand would be managed to fit available resources. The coat would be cut according to the cloth available, not the size of the customer. To this end, in April 2008 was introduced the Public Law Outline (PLO), version one. Local authorities were to conduct assessments before, not during proceedings and thus, the argument went, they would put only serious cases before the courts and those would be more closely focussed . This, it was fondly thought, would spare the LSC the expense of funding court ordered assessments, Cafcass would need fewer guardians and cases would proceed more quickly to conclusions placing less pressure on scarce judicial resources. At the same time the Ministry of Justice (MoJ) increased the fees local authorities have to pay when starting care cases by about 3000% as an added disincentive to starting cases. The LSC, Cafcass and the MoJ adjusted their budgeting and staffing plans according to this now happily controlled and reduced demand scenario.

At first this strategy seemed to be working. After a period of considerable reduction in care cases being commenced while local authorities adjusted to the new system, cases started to flow into the courts again although now at a lower rate than before some cases having been diverted by coercing parents to agree to voluntary care (Section 20 accommodation) instead of going to court. The conspirators relaxed – things seemed to be working.  Then came the tragedy of the death of Baby P which emerged into the public domain in November 2008 followed in December by the instant and public sacking of the Director of Children’s Services, Sharon Shoesmith.

That changed everything. No Director of Children’s Services with any instinct for self-preservation was going to sit on risky child protection cases whatever the official guidance or the financial penalty. All such cases must, and are being, put before the courts. So now, that carefully tailored coat with its miserly cut is rent asunder and the great mass of  abused and neglected and needy children are visible instead of being hidden behind the respectable fabric.

What is the answer? Some would turn the clock back to an earlier age when justice for children was swift and mostly pretty arbitrary. Some would wish the courts of law out of the equation entirely and have the whole child protection system handled administratively. But the real answer is to increase the capacity of the courts. The sort of delays in processing cases which are currently, and rightly complained about, are almost entirely due to shortages of Family Judges and Magistrates and space in court timetables. What stops Judges from setting court timetables according to the needs of the children is the lack of slots in the judicial and court diaries. Judges already have all the powers they need to force lawyers to comply with deadlines and be succinct, full powers to limit experts to the relevant and make them report on time, powers to compel social workers and other witnesses to appear before them when they want to hear them and powers to make Cafcass (or other providers) supply Guardians. The Judges can force economical and expeditious working into the rest of the system and prevent waste and delay if given the resource to do so. The power the Judges lack is the ability to recruit more trained Judges and make sufficient court time available for them to do their work.

Will the answer be implemented? Probably not and mainly because dislike and suspicion of the judiciary is embedded deep in the DNA of government, particularly in the civil service, and that is where the power to supply the answer lies.

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