VISIT FROM THE PRESIDENT OF THE FAMILY DIVISION
GUILDFORD COUNTY COURT 5TH FEBRUARY 2013
NOTE BY TIM MELVILLE-WALKER OF MACDONALD OATES LLP APPROVED BY THE PRESIDENT OF THE FAMILY DIVISION
The new President is visiting as many of the Courts as he can and was very keen to be open with the profession, and to hear frank views in return. Clearly a lot of us wanted to hear as it was literally standing room only at the Court.
There was a significant discussion about the changes to Legal Aid in April and the expected rise of unrepresented parties. The President was quite candid that there is no plan to address this yet, though there are various discussions on-going. It is hoped that some guidance will be available before the changes.
Some present expressed concerns about “professional Mackenzie friends” and the willingness of the Court to allow Mackenzie friends to address them. Whilst recognising the concern for clients represented by these unregulated “advocates”, the President was quite candid that, if a Judge is faced with a choice of an unrepresented party or the assistance of a Mackenzie/litigation friend who is actually helping, he is unlikely to refuse to allow the person to speak for them. He emphasised that this is simple pragmatism and he was speaking in anticipation of the increased workload of the Court.
There was a significant discussion about the new 26 week deadline for the completion of care proceedings. The President listened carefully to various tales of extraordinary delay by the Legal Services Commission. In difficult cases he mentioned that the Family Division Liaison Judge might be able to break the deadlock, though obviously that is something to be used sparingly. He also reassured us that the electronic Care Monitoring System now in use in the courts will be used to record the reasons for delay, so if it is caused by Legal Services Commission or other agencies, this should rapidly become obvious and provable.
However he emphasised his determination to make sure care cases do come within the 26 weeks. This also led on to a discussion about experts and a warning that it really is going to be quite difficult to persuade District Judges to allow experts in any family proceedings now – the revised wording of the FPR imposes a significantly higher barrier and Judges are going to be encouraged to use commonsense and their own experience, or that of the parties or professionals already involved, rather than delay the matter for an expert report, the outcome of which might be very predictable.
In response to a question he was quite candid that this reduced timeline for care proceedings is a priority so this will inevitably impact on resources for private law children and financial matters etc..
There was some discussion about MIAMS and enforcing the obligatory nature of this. No real conclusion was reached but theoretically at least MIAMs will be obligatory and Judges should be sending back applications which have not complied with the requirements.(Revised guidance was issued to court staff on processing applications where the pre action protocol applies in December 2012) The President spoke strongly in support of mediation and all ADR methods. Given the expected pressure on the Courts he seemed to view ADR as an ally and included all ADR – mediation, collaborative law and family law arbitration and indeed anything else that may be developed.
The President also spoke about the unified family Court and was quite candid that a lot of work is going to be pushed down to magistrates/family justices. He was scathing of the prejudice against that level of judiciary and made it clear that it will need to be something complicated to justify the other levels of judiciary, dealing particularly with care matters.
The President was not blasé about the challenges facing the family justice system but certainly broadcast absolute determination to make it work, characterising this as a once in a generation opportunity to get things right.
MACDONALD OATES LLP