Response: Fit for the Future consultation
Q1. What is your view of our proposed benchmark that nearly all users should be able to attend a hearing on time and return within a day, by public transport if necessary?
1. It is welcome that consideration is being given to those who use public transport and don’t have use of a car. The largest impact of court estate changes is likely to be on those users relying on public transport, in terms of both time and cost.
2. The consultation recognises that maintaining effective access to justice remains paramount. The consultation suggests that fixing a specific time standard would be arbitrary because it would not be based on an analysis of court and tribunal users. We believe the solution is to carry out that analysis rather than using this as a reason not to fix such a standard. The consultation seems to ignore this possibility.
3. Nor do we understand the significant move from a principle in 2010 that ‘a majority of the population will be able to travel to their nearest court within one hour by public transport’, to ‘an aim that nearly all users should be able to attend court or a tribunal on time and return within a day, by public transport if necessary’. In our view, the consultation does not make the case for the latter. At best it might provide the basis for an expected maximum travel time in exceptional cases. A whole day’s travel as a backstop is disproportionate if, for example, the hearing in question is for one hour only. It ignores the reality of people’s lives and their child care and other potential commitments. We explore these issues in more details below.
4. The vast majority of those required to attend a court hearing at any point in their lives would or should consider it essential to attend and be encouraged to participate in the proceedings. For some, it is not the case at all that they will only be required to attend one, rare hearing.
5. The proposed benchmark still doesn’t provide for a maximum travel time (or cost) for all users within the jurisdiction. It takes no account of time of travel to reach or return from public transport access points. And in practice it is not evident that the proximity of proposed new courts, importing courts or non-court locations to well served mainline stations, is a real factor in decision making about changes to the estate.
6. The reference to ‘attending a hearing on time’ is not necessarily helpful in that the court hearing itself is only one part of attending court and users usually need to attend before that
time. What about meeting your advocate, possibly for the first time, negotiations with the other party and settling issues outside of the court hearing? It can be physical attendance in the court building, with the prospect of a hearing before a judge, which achieves that breakthrough.
7. The impact of waiting times at court where multiple cases are block listed on actual hearing start times, and being able to begin return journeys, does not appear to have been taken into account.
8. We don’t consider the comparison with Scotland to be fair and comparing like with like – the population is far smaller than in England and Wales with a larger proportion overall living in rural locations. Comparing access to justice to the number of households connected to mains gas supply is selective, irrelevant and wrong.
9. We have always called for careful consideration of the likely impacts of proposals on victims of domestic abuse, family court users with emergency applications, children and young people who attend court to give evidence (or who are given the opportunity to attend the court for some other reason), and parents involved in care proceedings who more often come from the most disadvantaged groups. The potential disproportionate impact of the proposed benchmark on those parties who are vulnerable adults or children, or those with young children or other caring responsibilities (including where they may be impacted by any future flexible operating hours pilot) must be considered and addressed.
10. In any event, access to court services without the need for physical attendance is not yet sufficiently established i.e. proved to be working and providing access to justice on a widespread basis, to properly analyse and justify the proposed benchmark at this stage.
11. We would welcome separate consultation and impact assessment about access to the proposed Financial Remedies Courts and the choice of pilot courts.
Q2. What is your view of the delivery of court or tribunal services away from traditional court and tribunal buildings? Do you have a view on the methods we are intending to adopt and are there
other steps we could take to improve the accessibility of our services?
12. We are not opposed to this in principle and would welcome the publication of the evaluations of the use of other types of venue already being used in due course. But we doubt delivery outside of the court estate is desirable and practical across the board in all court and tribunal work. Whether there are available and suitable alternatives, or better options than existing buildings, needs to be considered and analysed on a type of work and local basis.
13. The main issues seem to us to be what support and technology can be provided at locations away from court buildings, including provision and security for vulnerable parties and witnesses; and the ongoing costs of such when balanced against funding permanent fit for purpose court buildings. Supplementary provision will need to be funded and sustainable and we are unclear that there are guarantees of future funding.
14. The environment, building and facilities need to facilitate moving cases along, negotiation and the making of agreements (the purpose of some types of hearing like an FDR in financial proceedings on divorce is to encourage settlement); and bring security for witnesses and compulsion to tell the truth.
15. Family hearings usually involve sensitive issues, or issues that are sensitive to the individuals and children involved. It is difficult to see the benefit of the use of other buildings, especially where hearings will involve vulnerable adults and/or children requiring confidentiality and/or special measures support.
16. In family cases the focus might be more on technology which might reduce the need for all to attend court in some cases. If the technology was more available, we can see, for example, parties who are overseas and professional witnesses in family proceedings giving evidence remotely.
Q3. What are your views regarding our analysis of the travel time impacts of our proposals? Are there any alternative methods we should consider?
17. Sense checking with those with current local knowledge, including family justice professionals, is vital. Local legal practitioners, including the relevant Resolution regional committee/s should be consulted about future model outputs.
18. Travel cost impacts may be as important as travel time impacts for many of those relying on public transport to access justice. We suggest that travel costs, especially where those will be prohibitive or exceptional, should be far more central to the evaluation of proposals and decisions on both strategic and supplementary locations.
19. The travel time and costs of legal representatives, and the impact of such on users and legal aid, or availability or choice of advocate, does not seem to feature in the analysis and should do.
Q4. Do you agree that these are right criteria against which to assess capacity? Are there any others we should consider?
20. In our members’ experience, allocation, listing and availability of hearing dates and judges are more of an issue than courts’ utilisation. More courts would be used nearer capacity if more judges were available and listing arrangements more effective.
21. We would therefore like to see more emphasis on ensuring that there are sufficient judicial sitting days and adequate listing arrangements in place to meet capacity, and what is needed to meet the requirements of the court rules, before a court closure is proposed.
22. Usage level evidence should include usage by all levels of judge and usage of time at court (but outside of hearings) to settle family and other disputes.
23. We note that paragraph 4.5 of the consultation gives examples of areas of work where a hearing with attendance by the parties will often not be needed due to the nature of the application and process required (the low hanging fruit). However, the examples given are not representative of all categories of case and family case and should not be assumed to be generally indicative of the need for face to face hearings. For example, the figures given exclude children cases on divorce. They will not reflect where the prospect of a final court hearing has aided settlement before that stage in a finance case on divorce.
24. The criteria appear to focus mainly on court hearing capacity. All functions of the court building, to effectively process all aspects of court work from access to front of house services and the processing of an initial application, to the provision of a sealed order as necessary, should be in the mix.
25. We welcome the recognition of both importing and exporting locations. To date we have been extremely concerned about the apparent lack of real analysis of the impact on and capacity of courts receiving work from closing courts and what resources they may need.
Q5. What is your view on the proposed principles and approach to improving the design of our court and tribunal buildings? Do you have any further suggestions for improvement?
26. We have few comments other than to stress that this opportunity to improve facilities for victims, witnesses and children coming to the family court must be taken.
27. Special measures for children and vulnerable adults in family proceedings should not be subject to availability – if the court considers they are necessary, they should be provided, especially in the context of a reduced and improved court estate.
28. We understand that the size of court rooms in the new estate, for example at West London Family Court, can be inappropriately tight in terms of accommodating all parties and their advocates adding to the stress of an already stressful situation for the parties.
Q6. What are your views on our approach to people and systems? How do we best engage with the widest possible range of users as we develop scheduling and listing systems? What factors should we take into account as we develop our plans?
29. There is a general lack of acknowledgement that families and children involved in family proceedings may have multiple problems at a time of huge emotional stress and change.
30. Public and private family law court users are likely to have particular preferences and needs, including protective and emergency needs. We don’t feel that points we have raised in response to previous consultation on channels to enable people to interact with HMCTS in a meaningful and interactive way have really been addressed, particularly around the preservation of access to paper channels.
31. We would ask that our members be involved in the development of digital and any other systems to support the scheduling and listing of cases at the earliest opportunity.
32. In family cases administrative and judicial continuity are factors which should certainly be taken into account and supported. Judicial continuity in divorce financial proceedings has been endorsed by the highest courts.
33. There also needs to be consultation with ourselves and others on court numbers and how cases will be listed in proposed Financial Remedies Courts.
Q7. Do you have views on our approach to evaluating proposals for estates changes or any suggestions for ways in which this could be improved?
34. The consultation refers to now keeping the operational estate under review against a rapidly transforming service. Our view is that the approach is generally premature in that the service is not fully transformed, or the full new service fully tested with concepts proved.
For example, in relation to the family courts, whilst much progress has been made around developing the online divorce process (which is effectively a discrete administrative process where it is already common not to attend court), other initiatives are very much in their infancy.
35. It is particularly concerning that this consultation is accompanied by further local court closure consultations. We would have hoped that the responses to this consultation would have been considered, responded to, and any changes to the strategy applied, before the making of new court estate change proposals.
36. We query whether there is any space for anything qualitative or that sits outside of the considerations outlined in the consultation i.e. the unexpected that might challenge or overrule the thinking behind the proposed strategy.
37. The independent review of the evidence base is of course welcome.
Q8. What is your view on our proposed approach to future estates consultations?
38. The proposed approach of consulting on specific sites or groups of sites as part of a rolling programme, rather than via less regular large consultations, makes some sense. However, a concern is simply that, whether intentional or not, the big picture may be harder, especially for stakeholders outside the MoJ and HMCTS, to keep a handle on. Bad news may be less evident and easier to avoid.
39. We would be particularly concerned if all of the expected benefits of modernisation are not in fact delivered (for whatever reason) or not delivered within a reasonable time frame. We trust that stakeholders will be kept fully informed of outcomes and any changes in expectations or approach.
40. In terms of a rolling programme of consultations, we would ask that early advance notice of the likely publication of a proposal be given to the legal professions and others with a reasonable amount of time given to permit preparation of considered responses to proposals. We suggest that The Law Society, relevant local law societies, the Bar Council, ourselves and other specialist practitioner bodies be notified of all consultations, so that we can ensure that our regional members and their clients affected by the proposals, who are likely to be in the best position to respond, are aware of proposals and can engage with them.
41. HMCTS need to build much more confidence that local professional knowledge will be tapped and taken on board at a much earlier stage in the process of consideration of a closure or estate change and in location considerations. There is a strong sense of fait accompli.
42. Regarding the current consultation on Cambridge we would urge careful reconsideration. We understand that there is much regional concern that the current proposals make little sense and don’t reflect the estates principles. Cambridge is a key strategic location and a public transport hub with a fit for purpose building where HMCTS presence should be maintained.
Q9. What is your view on how these proposals are likely to impact on groups of court and tribunal users with particular protected characteristics as defined in the Equality Act 2010? Are there any
sources of evidence or research that you think we should consider?
43. We are not in a position to comment in detail.
Q10. Do you have any other comments on our future estates strategy?
44. The approach set out in the consultation is based on a starting point that a physical hearing may not be right for everyone. Supporting parties to resolve disputes themselves might be another aim but is not directly related to the need for a physical hearing where disputes cannot be resolved without the making of a judicial decision. It is not the case, as suggested by the consultation, that parties don’t currently have the opportunity to agree a settlement or make settlements within existing court systems.
45. Whilst we support, for example, the introduction of more modern technology across the court estate, we reiterate our comments on the need to fully test and successfully establish online and virtual models, before the loss of a disproportionate part of the court estate and face to face services to help people resolve legal disputes. It is unfortunate that the technology has been permitted to become so out of date and not been addresses for so long – HMCTS needs to build confidence that the systems procured will be robust, supported and upgraded as necessary.
46. We strongly support all the points made by the Chairman of the Justice Committee in his letter to the Parliamentary Under-Secretary of State for Justice dated 27 February 2018