Posted on | June 12, 2012 | 6 Comments
I recently berated unnamed colleagues for their failure to pipe up, albeit gently. This prompted one heartfelt response from another blogger (although he need not have felt my poke was aimed at him since he had already made his views publicly known here). That post was my way of saying “Don’t rely on me to make time to say what you think on your behalf”. But now I have the time I feel I ought myself to step up to the plate as I have urged others to do. I don’t kid myself it will make on jot of difference. We’re all going to hell in a handbasket, but I for one would at least like to be able to say “I told you so”, instead of “I thought as much, but didn’t have the guts to say it at the time”. So… *Slurps a little more wine to achieve the necessary level of disinhibition*
…Here goes my career.
26 weeks. Will. Never. Work.
This much is true whether you introduce such a guillotine through primary legislation, through local authority, court service or judicial performance targets, through amendments to the FPR or through judge led guidance. And I’m not telling any of you anything you don’t already know or think – but to question whether the mantra of 26 weeks is in fact achievable (god forbid desirable) is taboo, and those who utter such heresy are put down as being simply unable to comprehend the need for change, dinosaurs who will become extinct before long. But things do not become more true or more real through repetition alone.
We can and should (and do?) aspire to less delay in more cases. We should however, be cautious of an imposed rigidity which is based on aspiration rather than reality. I place in that context the Family Justice Modernisation Programme.
Ernest Ryder has been passed a truly poisoned chalice : seize the initiative and try and make the inevitable more manageable, less catastrophic, before the Government does its thang under a cloak of austerity and lawyer bashing. I don’t criticise him. He is doing what he must. As is the judiciary in appointing him.
And so, before the Governmental axe falls, a judicially wielded guillotine has been imposed upon us as of April 1st (you knew that right?). In effect the new Family Justice Modernisation Programme brings in the 26 weeks before Parliament has even considered it (white flag much?). A new drive towards proactive judge led case management that will succeed where the PLO and the Protocol failed. Or perhaps a new system that will fail in exactly the same way but which will provide a better evidence base as to the reasons for that failure, that can be presented to Government to make them listen? Perhaps. Perhaps. Perhaps.
Except. It depends on us (lawyers). And nobody gets it (i.e. is it a white flag or a cunning plan?). It’s just another piece of guidance urging us to cut delay, telling judges who don’t have time to scrutinise consent orders to do so, telling us all to be circumspect about experts and assessment ad nauseam. I don’t sense any great upsurge in enthusiasm for implementing this new judicial diktat, and I suspect most have no clue about what is required or expected in terms of recording the reasons for adjournments (this could theoretically change as the thing beds in, but I doubt it will do so because it may be perceived as capitulation to a bonkers, politically driven coalition policy). Although the new initiative has the potential to demonstrate exactly why 26 weeks is so unworkable in practice, I doubt it will in fact demonstrate anything because the lawyers don’t get it and aren’t behind it. They are skeptical of yet another initiative, and of the judicial embrace of a 26 week time limit that they all know, and that they know all the judges know, and that they know Ernest Ryder knows – is unworkable. And we ALL know that the government ALREADY knows that a 26 week time limit is unworkable – so why the hell would we think we could change policy by evidencing what they already know but choose to ignore?
As for why 26 weeks is unworkable – well, I’m not one for duplication of assessment, so will adopt the excellent analysis here and here. I neither have time nor inclination to tackle the government’s policy on adoption here, but you can read my previous posts here and here, and another insightful post here (and I haven’t even had time to blog about recent news items concerning the introduction of adoption scorecards and the knock on effect that is likely to have on the proper conduct of care proceedings).
Whatever the intention, the effect is that the family justice system is just walking up to the guillotine and mutely laying its head beneath the suspended blade, waiting for it to fall. It will be no use complaining when our head is in the basket, and the family justice system is lying dismembered. Messing up the family justice system is about as irreversible as adoption.
Of course 26 weeks is just one of a range of changes that we are faced with in the family justice system. And I’m not against change. Not at all. Although there are flaws and limitations to the Ireland Report, myself and many colleagues have, I know, been timeously reminded that there is a need for rigour when thinking about the identification and instruction of experts, the drafting of questions, and the cross examination of them. We do need fewer but better targeted expert reports of higher quality. But let us not forget the reasons we have become so accustomed to almost habitual instruction of experts in care cases – inconsistent quality of evidence from local authorities, complex presentation of parents, absence of experienced social work analysis arising from a combination of newly qualified social workers and non-existent guardians in years gone past…And many of those background drivers will be enduring.
And let us not forget that the reason for much delay is beyond the control of the court or the parties, one concerning example of this is set out in the recent judgment of the President in A v DS & Ors  EWHC 1442 (Fam).
And let us also remember that a significant proportion of the capacity in the family justice system is taken up with private law children cases which, thanks to LASPO, will in future be predominantly dealt with by litigants in person (sorry the great self represented), thereby massively increasing the pressures on the system.
But remembering all of that – I know that change is necessary as well as inevitable. And I know that 26 weeks is coming. I know that Ernest Ryder and the senior judiciary are trying to ameliorate the awfulness of what is in store for families and for justice. And I understand their predicament.
But I want to mark my concern. My disapproval of what is being driven through without regard to reality or resource. The sick feeling I have in my stomach when I think about the way our family justice system is going. Ryder, Wall et al could not say it even if they wished to. But : it sucks. And it sucks because the whole of the coalition’s approach to family justice is looking at the problem from the wrong end of the telescope, and will consequently cost society more than it can ever hope to save, and will have real human cost to boot.
This blog post has been brewing for a while. I thought initially that the disquiet that bubbled to the surface would be quelled by the posting of my previous post, but it hasn’t had that effect. I have felt drawn to “out” myself, to express my opinion (unusual I know) against my better judgment.