Family Justice Review Final Report November 2011 Family Justice Review Final Report November 2011 Contents i Foreword by David Norgrove, Chair of the Family Justice Review ......... 3 ii Executive Summary ..................................................................................... 5 iii List of recommendations .......................................................................... 26 1. About the Family Justice Review ............................................................. 37 2. The family justice system.......................................................................... 40 Introduction .............................................................................................................. 40 Why change is needed ............................................................................................ 41 The child’s voice ...................................................................................................... 45 A Family Justice Service.......................................................................................... 49 Judicial leadership and culture................................................................................. 63 Case management................................................................................................... 71 The courts ................................................................................................................ 72 Workforce................................................................................................................. 79 3. Public law ................................................................................................... 91 The problem of delay ............................................................................................... 91 The role of the court................................................................................................. 94 The relationship between courts and local authorities ........................................... 101 Case management................................................................................................. 103 Local authority practice .......................................................................................... 112 Expert witnesses.................................................................................................... 117 The representation of children ............................................................................... 126 Alternatives to conventional court proceedings...................................................... 129 4. Private law ................................................................................................ 133 Introduction ............................................................................................................ 133 Making parental responsibility work ....................................................................... 134 A coherent process for dispute resolution.............................................................. 150 Divorce and financial arrangements....................................................................... 172 5. Financial implications and implementation........................................... 179 Family Justice Review Final Report – November 2011 | 1 Annex A – Terms of Reference ................................................................... 182 Annex B – Panel biographies...................................................................... 184 Annex C – Analysis of consultation responses......................................... 185 Annex D – Estimated costs of the family justice system.......................... 203 Annex E – List of data gaps......................................................................... 205 Annex F – Pre-application protocol for mediation information and assessment ................................................................................. 207 Annex G – Helen Rhoades evidence in relation to shared parenting ...... 215 Annex H – The revised process for divorce............................................... 225 2 | Family Justice Review i Foreword by David Norgrove, Chair of the Family Justice Review The range and depth of responses to our interim report shows again people’s strength of feeling about family justice as well as the commitment of all who work in it. On behalf of the panel I want to thank the many who responded so thoroughly and thoughtfully to our consultation. We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child. These delays contribute to the 2 years 7 months it takes on average for a child to be adopted. With 20,000 children now waiting for a decision, delay is likely to rise further. Many of our recommendations are unchanged from the interim report. Others have changed as a result of the consultation and our own further work. But the thrust is the same. We see a need for stronger leadership and coordination of the organisations and people involved in family cases and have proposed structural changes designed progressively to achieve this. We aim to strengthen the voice of children. We recommend changes in legislation, regulations and processes in public law aimed at putting the needs of children first and with tighter attribution of responsibility to the different actors in a case. And in private law we recommend a series of changes aimed at helping more people to sort out their affairs for themselves while protecting the interests of their children. We are though fully aware that changes in structures, rules and processes will not by themselves measure up to the scale of the strains and problems we diagnosed in our interim report. Much of the improvement for children will have to come from change in the way people choose to work, from change to the culture of family justice, and from change to the culture of delay. Here all the dedication to family justice can harm children, not help them. Having read dozens of replies to our consultations I was struck by the way in which almost every group thought things would be better were they allowed to do more, including judges, magistrates, social workers and expert witnesses. Hardly anyone thought they themselves should do less. There is no doubt an element of self-protection in this. But it often comes at least as much from a belief that other people are not doing their jobs for children as well as they should be done. The reality of course is that time and money spent on one child means less time and money available to help another. We heard in evidence of enormous expenditure on some individual cases (over £300,000 on residential assessment in one). But the point applies to all. Dedication to achieving the best possible result for one child comes at the hidden expense of another whose case is delayed or whose social worker has to come again to court when they might have been working to help another child to remain safely with their birth family. Family Justice Review Final Report – November 2011 | 3 Distrust of other parts of the system is not always well founded. Prejudice against care as an option for children and distrust of local authorities are fuelling delays in the system. It is of course right that we endeavour to keep families safely together but we must also be quicker to recognise when this is not possible. Research shows that the majority of maltreated children who are looked after by authorities will do better in terms of their wellbeing and stability than those who remain living at home. Courts need to recognise the limits of their ability to foresee and manage what will happen to a child in the future. They must also learn to trust local authorities more. In private law we of course believe strongly that most children benefit from a relationship with both parents post separation. The question is how best to achieve this. Shared parenting should be encouraged where this is in the child’s interests. In our view the best way to achieve this is through parental education and information combined with clear, quick processes for resolution where there are disputes. We are aware that some will be disappointed by our decision to recommend against a legal presumption around shared parenting and to step back even from the recommendations we made in this respect in our interim report. The evidence we received showed the acute distress experienced by parents who are unable to see their children after separation. This is an issue we know countries around the world try to tackle, and fail. Our conclusion was reached reluctantly but clearly. The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children. Progress depends on a general social expectation of the full involvement of both parents in the lives of their children before separation, not on changes in the law. Again, I wish finally to thank my fellow panel members for their huge and creative commitment. And on their behalf and my own I thank most warmly Jodie Smith and the secretariat for their knowledge, thought, judgement, graft and patience. It has been a pleasure to work with you all. 4 | Family Justice