Hodge Jones & Allen

The Norgrove report represents a thorough review of the family justice system as it currently exists, together with recommendations for the future. The media has alighted upon what it considers to be the most important elements – no greater reflection of grandparents’ rights and no automatic presumption of children spending equal time with each parent after separation or divorce. In fact, to concentrate on these details does the report a great disservice. It offers far more, both in terms of a critique of the current system and proposals for the future.

However, in many respects the report could not have been produced at a worse time. With public spending being slashed and the justice system bracing itself for the impact of swingeing cuts to the availability of Legal Aid, there is a real danger that the opportunities offered by this report are lost, and that instead the government simply alights upon those elements of the report that fit in with their cost-cutting agenda, thereby undermining fatally the opportunities that the report presents.

The Good

The report must be praised for offering a genuine and holistic image of the family justice system which doesn’t pull punches and will be familiar to many practitioners and users. Essentially, the primary conclusion is: the law is fine, but the system is failing. It is beset by inefficiency, delay and a lack of clarity in objectives. Too often, initiatives that have genuinely attempted to improve the situation have foundered because of insufficient resources or training.

The report also expresses clearly the need for Judges to have a greater appreciation for the sensitivities and unique character of family justice.

The report is to be applauded for its understanding that the family justice system does not exist in a vacuum. In order for family justice to work properly, there are other things that have to “go right”: local authority Social Services’ practice, Court social work and CAFCASS, Court staff, Court buildings, etc. It is pointless to tinker with or, indeed, to seek to overhaul the family justice system in isolation.

The Bad

The tensions and strains in the authorship of the report are at times almost tangible. The report falls just short of sounding the death knell for CAFCASS, whilst acknowledging that a change of name might “draw a line” for all concerned. Whilst one might understand why the report takes this view – it was, after all, not its remit to consider the performance of CAFCASS – the effect is that the report sidesteps one of the most significant factors in the current delay in delivering outcomes for children.

Similarly, whilst the report expresses concern about the likely impact of changes to the Legal Aid system and suggests that government should monitor the effects carefully, it stops short of condemning the proposals for reform themselves, despite the fact that everyone involved in the family justice system anticipates that the impact of these changes will be to exacerbate many if not all of the difficulties identified by the report. We are therefore left with a ludicrous situation in which a report that roundly – and rightly – condemns delay within the system fails to go on to condemn what is likely to be the single greatest contributing factor to this delay worsening over the next few years.

There are other elements of concern. The suggestion that all couples be forced to engage in not one but two steps of alternative dispute resolution and “information meetings” before having access to the Court may seem very sensible, but may equally announce open season for those who wish to delay and procrastinate. The proposal that Courts should not scrutinise local authority care plans was opposed by many involved in the representation of children and may in particular act as a significant disincentive to family members from coming forward to offer to care for children when birth parents cannot.

The Dangerous

The great danger represented by this report is not to do with any of the proposals themselves. Rather, it is the risk that government in its response will simply cherry-pick those parts of the report that appear to them to be likely to lead to less cost and fewer families using the Court system. To do so would be likely to lead simply to further tinkering with a system that has experienced continual rule changes and new initiatives over the last few years, without any recognisable benefit.

The report itself is refreshingly clear and honest: systemic change is required, not piecemeal tinkering. The kind of changes that will result in a real difference to those who use the family justice system – and children in particular – will not be achieved simply by cost-saving measures. They will be achieved by an understanding that family justice is too important to leave to chance. Real effective change to the family justice system will require an understanding on the part of government that it comes at a price. Unfortunately, the chance of government being willing to pay that price at this time appears remote.

Disclaimer

This briefing note is intended merely to provide a summary of the law in this area and is not a comprehensive guide. It is not intended to provide legal advice for specific cases. The law and practice in this note is stated as at November 2011. Hodge Jones & Allen LLP 2011.

Toby Hales is a partner and head of the family law team at Hodge Jones & Allen.