Will Covid-19 hamper the FJB’s two-year family justice plans?

The Family Justice Board is the primary forum for overseeing the performance and aims of the family justice system in England and Wales. It was set up to effect improvements to the system and to ensure the best possible outcomes for all children who come into contact with it. Current members include Jacky Tiotto, the CEO of Cafcass, and Isabelle Trowler, the Chief Social Worker for Children and Families. Sir Andrew McFarlane, President of the Family Division, sits on the Board as an observer.

In December 2020 the Family Justice Board released a statement setting out its prioritised actions to tackle the immediate and everyday challenges faced by the wide range of agencies within the system, which have of course been exacerbated by the Covid-19 pandemic. The statement is accompanied by two further reports prepared by the Private Law Advisory Group and the Public Law Advisory Group.

The statement expresses an acute awareness of the impact that the delays to court proceedings – in which major decisions are to be made about childrens’ lives – are having on the identity, mental health and wellbeing of the children concerned. With this in mind, a number of steps have already been taken to alleviate pressure within the system. This includes:

• the formation of a cross-sector Covid-19 recovery group to co-ordinate the system response
• the recruitment of around 900 additional support staff by HM Courts and Tribunals Service
• an ongoing programme of recruitment to increase judicial capacity
• £3.5m additional funding to help Cafcass increase staff levels to respond to record levels of cases

Whilst additional resources are essential to alleviating the pressures posed by the pandemic, the Board are also looking to deliver reforms to address the entrenched, long-term issues.

What are the long-term plans to reform private family law?

A revised Child Arrangements Programme is being developed to deliver an earlier gateway to court. It is hoped that this will offer families “a more rounded” assessment of the needs of their children and an improved offering for non-adversarial dispute resolution. It is also hoped that this will be achieved by:

• enhancing the network of services outside of the court system
• providing information to separating families about non-court dispute resolution at an earlier stage than the current Mediation and Information and Assessment Meeting
• exploring whether there could be a role for Cafcass in the pre-court space
• considering the impact of fees and costs on the choices families make to achieve resolution
• moving away from an adversarial approach to the resolution of court applications
• integrating the services outside of the court with the work of the court
• promoting better communications within the court system

The Family Justice Board also said that those cases that proceed to court would be offered “a differentiated approach to adjudication” and a more effective approach to case management and review. It is suggested that this will be achieved by:

• triaging cases to ensure that their management is defined by their complexity and characteristics
• testing the use of “tracks” in private family law
• making best use of resources so that professional input is targeted where it is most needed
• using technology to improve the experience of court users

A further long-term plan to reform private family law is to ensure that the most vulnerable children and families are always put first within the system. It is anticipated that this will be achieved by furthering the Board’s existing efforts to:

• promote the Family Court’s ability to respond consistently and effectively to domestic abuse and other serious offences
• improve the experience of survivors of domestic abuse
• enhance the voice of the child at all stages

All of these long-term priorities have been timetabled to come to fruition within the next 24 months.

What are the long-term plans to reform public family law?

The Family Justice Board’s recent statement of priorities for the family justice system also says that they wish to ensure that those who need support and safeguarding receive it at the right time. With this in mind, they are due to “renew the existing good practice within the Public Law Outline”, which is an official guide to case management in public law proceedings.

Recommendations have also been made to improve checks and balances in cases concerning the removal of children from their parents/carers. This includes:

• updating statutory guidance to provide greater clarity regarding the expectations of local authorities in respect of pre-proceedings
• amending Ofsted criteria for the inspection of local authority children’s services
• amending Practice Direction 12A (which relates to case management) to be clearer on the expectations of children’s guardians early in proceedings
• amending Practice Direction 16A (which relates to representation of children) to include the option for recommending an adjournment to proceedings if not enough time has passed to satisfy the court that removal is in the child’s best interests

Conclusion

The Family Justice Board’s plans to tackle the longer-term areas for reform may initially be succeeded by immediate recovery priorities, such as the alleviation of the backlog of private family law cases and the prioritisation of the most vulnerable children and families in public family law cases.

In the meantime, the statement prepared by the Board and the associated reports prepared by the Private Law Advisory Group and the Public Law Advisory Group are being cascaded to professionals working within the family justice system to raise awareness of the priorities identified.