Justice system is failing families
Vulnerable children and families could suffer
if reforms recommended by the Family Justice Review
are not fully prioritised and resourced, according to a family law specialist.
A 3 year delay before vital Family Court changes are implemented have worrying implications, says Emma Pearmaine, head of Family Law
at Simpson Millar solicitors.
If the Review's recommendations are accepted, Cafcass (the Children and Family Court Advisory and Support Service) would be incorporated into the Family Justice Service, with a remit to provide essential court social work functions
"According to the report a lack of funding means that these reforms will not be implemented until 2015. But what is to happen to the system in the meantime?" asks Emma Pearmaine.
"Cafcass' budget has been frozen between now and 2015, representing in real terms year on year cuts. The Review clearly says that the current system is failing children and families
, but concludes that these essential changes will be delayed
, seemingly, because of this government’s programme of cuts in spending on public services."
The Review recommends there should be a Family Justice Service
sponsored by the Ministry of Justice, rather than the Department of Education, which currently oversees Cafcass. This would create a single family court
with one point of entry and greater specialisation among the judiciary.
"The feasibility of such a significant change in the current economic climate has to be questioned," commented Emma Pearmaine.
The Review rightly recognises that the average case length of over a year in public law cases is not acceptable
and delay in making vital decisions damages children in the care system
. It recommends that the government should legislate to set a time limit on care proceedings of six months.
Emma commented: "This is well and good if there are the resources available to meet the six month timescale. Where there are not, and those timescales are not achieved, the local authority may find itself challenged for the breach of that statutory provision, which could divert time and resources away from deciding the future for a child."
"As lawyers, we support the recommendation that the core issues of whether a child is to live with parents, other family members, or be removed to the care of the local authority should remain with the family courts. "
"However, there are times when it is absolutely necessary, in the best interests of the child, for lawyers to challenge aspects of the proposed care plan, particularly in circumstances where that plan involves the sharing of a child’s care between parents and other family members or the local authority."
In the private family law
arena, which deals with divorce, separation, residence and custody, mediation is widely seen as the solution to the issue of developing alternatives to court proceedings. From October 2012, it will be the only option for parents who would currently be eligible for legal aid, where it has been established there is no domestic violence, unless the parents choose to fund their own case.
"We are already moving that way with the change in the Family Procedure Rules this year," said Emma. "However, not all cases are suitable for mediation and what happens where one party refuses to attend? There is an argument that if all cases are pushed into mediation, the success rate will fall – undermining a process which has otherwise proven very successful."
Emma concluded: "To negotiate sensibly and reach a fair agreement, couples need a thorough understanding of their legal rights and responsibilities. The Review does not acknowledge the invaluable work that lawyers and Cafcass already do in educating parents as to concepts such as parental responsibility, how to resolve their disputes outside of the court arena and the fundamental importance of protecting children from adult conflict and the paramount importance of the children’s physical and emotional wellbeing."Useful links