Clause 16 - Civil and family proceedings in England and Wales

Crime and Courts Bill [Lords] – in a Public Bill Committee am 12:00 pm ar 29 Ionawr 2013.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice) 12:00, 29 Ionawr 2013

I beg to move amendment 73, in clause 16, page 16, line 17, at end add—

‘(7) There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court.’.

I welcome you to the Committee, Mr Caton—I did not have the opportunity before now, although I know that other Members did last week.

We have spent the last few sittings discussing the National Crime Agency and serious organised crime and terrorism, but we are now shifting to a very different  area of justice. Clause 16, alongside schedules 9 to 11, provides for the establishment of a single country court and a single family court. Amendment 73 addresses subsection (3), which contains the family court provisions, and simply states that there should be no restriction, as currently exists, on the number of days that a family magistrate may sit in a family proceedings court.

The creation of a single family court was a recommendation made by the family justice review, which was commissioned under the previous Government and chaired by David Norgrove. The Opposition strongly welcomed his recommendations and support the Government’s implementation of them. On accepting the recommendations, the Government said that the creation of the new family court would

“facilitate wider reforms to enable the more efficient use of court resources, and more effective administration of proceedings”.

We agree with that, and will not press the amendment to a vote. However, although we accept that it is desirable to move to a structure of single courts, our amendments address the details on administration and how best to keep the court system under adequate review, so that we may monitor the impact of reform—both successes and difficulties.

The amendment addresses a matter that the Government have, to their credit, previously considered, and is intended to gauge where they are at with it. It provides for the removal of the limit on the number of days that a family magistrate can sit in the new family court, which is currently 70 days. It is worth spending a little time considering the work that magistrates do, so that we can properly understand why a 70-day limit might be disadvantageous to the smooth running of the family court. Many magistrates do family work because they care very deeply and passionately about families and especially children. They undertake special training beyond that which magistrates normally do, often beyond the core requirements of the law, and are called upon beyond their normal time commitments, often at unsocial hours. They do a lot to create a family court that is friendly and accessible, particularly to parents, and they always put the child’s welfare first.

One thing that family magistrates are often praised for, which other legal areas could learn from, is making sure that parents understand proceedings. They are not perfect and things do not always go as we would wish them to, but the magistracy deserve credit for the efforts that they have made to make things more easily understandable for the users of family courts. Family courts are more relaxed. Those involved sit around the table. Both public and private law is dealt with. Family cases, whether public or private, are always tricky.

Photo of Valerie Vaz Valerie Vaz Llafur, Walsall South 2:15, 29 Ionawr 2013

It is a pleasure to serve under your chairmanship, Mr Caton. Is it the case that sometimes both parties are not represented by lawyers? It is a much more informal atmosphere, as my hon. Friend says. However, perhaps one side may have a lawyer while the other side does not.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I am grateful to my hon. Friend for her intervention. It has been argued that such circumstances will increasingly become the position, following changes to legal aid. The Ministry of Justice’s impact assessment  of the changes under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 stated that we could expect to see more people representing themselves in such situations. My hon. Friend the Member for Walsall South has underlined the importance of magistrates making justice accessible to a broad range of people.

Family courts deal mainly with public law cases in which the state, usually a local authority, is often attempting to intervene in family life. That can include anything from supervision orders to keep an eye on a family with problems, to adoption, but most of the work involves care orders. Family courts hear thousands of private law cases when there is disagreement between members of families. They are equally difficult cases. Custody battles are often resolved in a family court, as are issues of contact. Such courts deal with about everything in family law except divorce cases, of which many are dealt with in the county court.

When we listen to magistrates, it brings home how important their work is to our justice system. A testimony of a magistrate—a former midwife—that I read recently has stuck in my mind. It shows how magistrates come from a broad variety of backgrounds, something that we want replicated in other areas of the judiciary, an issue that we shall discuss later this afternoon. The magistrate described a case that affected her, in particular. She had to make decisions about a middle-class family in which there were three girls and a boy. They had all been horrendously sexually abused by their father—a respected member of the community—with the collusion of their alcoholic mother. The abuse only came to light when the eldest girl told her fiancé.

The magistrate said that they were fantastic kids, and had sat in court holding hands. The eldest had married her fiancé, and she had obtained residence with the youngest two children. However, the magistrate found the reaction of one of the teenage daughters disturbing. She was intelligent, sophisticated and wanted to be a lawyer, but said that she loved her father and that she would always support him.

A chair of the bench went on to explain how training has supported her understanding of such difficult cases. She said,

“some people become entrapped, sucked into skewed relationships and that children will often keep abuse a secret for fear of breaking up the family.”

Older children are sometimes carers for their alcoholic or drug-addicted parents and want to protect them. They may even say that they want to stay in the household where they are being abused. The court can appoint a guardian, although there may sometimes be a shortage of them, to look into family circumstances and help to decide what is in the child’s best interests.

Normally the guardian’s role is to support the child, but occasionally the guardian and the child might each have their own legal representation, as they might be requesting different outcomes. I am trying to explain how difficult and complicated some hearings can become.

It is not all depressing for magistrates. The favourite occasions, I guess, will be when they are not removing a child from a family, but adding one through adoption. In one account, a magistrate says:

“At the conclusion of adoption cases, the whole atmosphere [in court] is one of joy…The children get a certificate and a toy, and the family are allowed to take photos.”

The proceedings can be quite a charming thing too.

We feel that individuals who have developed strong expertise and experience in delivering justice in family courts should not have their contributions limited to 70 days a year; that is too restrictive.

One family that the magistrate dealt with already had a seven-year-old and was adopting a three-year-old. When the legal process was over, the parents told the seven-year-old that she now had a little sister. The child replied, “I’ve always wanted a little sister,” and her new sibling turned to her and said, “I love you.” The magistrate said:

“There wasn’t a dry eye in the place.”

The hardest cases are those where the risk-benefit between leaving a child at home and taking him or her into care is finely balanced. I would not want to be in the position of taking such decisions. Individuals who are willing to put themselves in that position should be able to offer their services to the community in that way to a degree that they see fit, and they should not be restricted.

Photo of Valerie Vaz Valerie Vaz Llafur, Walsall South

My hon. Friend makes an important and moving point about adoption. Given that we all support the way in which the Government are trying to speed up the adoption process, does she agree that we need more magistrates, rather than fewer, sitting for longer?

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I agree with that. More magistrates should be encouraged to offer their services in more specialised areas, such as the family court. I would not want to see their contribution to the family court curtailed in any way; it just does not seem justified. I know that the Government have some sympathy with that view, so the amendment is an opportunity for the Minister to inform the Committee of his most recent thinking.

The removal of the time restriction was among the proposals recommended by the “Family Justice Review”. That report, which was widely welcomed on both sides of the House, noted:

“Judges and magistrates should be enabled and encouraged to specialise in family matters.”

That is right.

Sadly, as my hon. Friend has indicated, there is a growing demand on our family courts. The review recommended that appointment to the family judiciary should include consideration of a willingness to specialise in family matters, and, following representations that the limitation on the number of days they may sit prevents specialisation in family matters, that the restriction on magistrates’ sitting days should be reviewed. That is the reason for amendment 73.

The recommendation follows the review’s statement:

“The aim should be judicial continuity in all family cases.”

It is desirable, for the more effective performance of the court, which both the Government and Opposition desire, and for the experience of those involved in proceedings, for the magistracy to have the opportunity to build up expertise and provide continuity when dealing with sensitive family issues. The issue is also about getting cases heard and concluded in timely fashion.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Selly Oak

I am following my hon. Friend’s point. Does she accept that one argument for ensuring that we have magistrates who have built up a great body of expertise in this field is that quite often courts now bend over backwards to help litigants in person at the expense of people who have proper legal representation? We need clarity about the role of magistrates in such situations. We need to protect the rights of litigants in person without giving them an unfair advantage. If magistrates do not sit for sufficient time, the disruption would encourage, rather than lessen, that likelihood that litigants in person are unfairly advantaged.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

My hon. Friend makes a good point. If I may widen it further, I do not think the Government, or anybody else, fully appreciate the ramifications of the increase in the number of litigants in person. We do not yet know how it will affect access to justice and delays in court proceedings. As my hon. Friend alluded to, there is an increased pressure on the judiciary at many levels to make allowances for the fact that people are representing themselves. There is much to keep in mind on that issue. Hence, we will need an amendment shortly after we see the impact of the reduction in legal aid. There may need to be a change to the arrangements for litigants.

Clearly, the Department for Education will have an interest in the family court, given the number of cases and care proceedings that are heard in the family court. Has this issue been discussed with the Minister responsible for looked-after children? I know he takes seriously the speed at which such cases are heard, and he is concerned that we accelerate the speed. The restriction on the number of days that magistrates can sit is not helpful in accelerating the speed at which cases are heard.

The Government’s response to the Norgrove review states:

“The Government agrees with the Review’s analysis that enabling and encouraging specialisation in family matters will improve judicial continuity and create a more experienced family judiciary.”

That is welcome. The Government’s response accepts the recommendation that sitting day restrictions be revisited. It states:

“The Government will review processes in relation to managing magistrates’ sitting days and the current system of writing to magistrates who go over the recommended maximum threshold.”

We welcome that statement greatly, but we have not seen anything to support it. The Government agree that magistrates willing to sit extra days to accommodate family cases should not be discouraged from doing so due to an arbitrary threshold. The Government will consider, with the Judicial Office, how such processes can be refined at the earliest opportunity.

In the other place, a Government spokesman assured the Lords that the Government will work with the Judicial Office to look at the feasibility of making such changes. They promised to update interested parties—and the Opposition are an interested party—on progress in this area. That is what the amendment is about. We will not press it, but will the Minister make good on that promise and update the Committee on where his Department is with that recommendation, and whether any progress has been made?

Photo of Oliver Heald Oliver Heald The Solicitor-General

It is a pleasure to serve under your chairmanship, Mr Caton. I congratulate the hon. Lady on presenting her amendment with customary warmth and humanity. No doubt, it is based in her experience of psychology and—

Photo of Oliver Heald Oliver Heald The Solicitor-General

Indeed, and her particular interest in this important area.

Lay magistrates do an excellent job. They do all the things the hon. Lady said; they put people at ease, they work hard to gain experience, they train and they deal with difficult cases that are hard to decide. I am very happy to start by paying a tribute to their work, which is truly vital.

The hon. Member for Walsall South made a point about litigants in person; I think we now call them self-represented parties. There is no doubt that it is important, particularly for people who are on their own, that they have the support they need to present their case properly.

The current sitting limits are set out in the Lord Chancellor’s Directions for Advisory Committees on Justices of the Peace. They provide a ladder for magistrates as they start out. The minimum that a magistrate has to serve is 15 half days in the adult court. The maximums are 35 days if a magistrate sits in one jurisdiction only, or 50 days if they sit in more than one jurisdiction. There is of course some flexibility, because if they are on a case that runs for a longer period it is possible to sit beyond the limit to provide continuity. These are the sort of basic rules set out in the directions.

The reason behind the current rules is to try to ensure that a range of magistrates have experience of this jurisdiction as well as the main adult jurisdiction, with the idea of bringing magistrates on over time as they gain experience. A court would perhaps typically have as chairman a very senior experienced family magistrate who has specialised for some years, with perhaps a slightly less experienced person on one side and someone who is fairly new on the other, with the idea of building experience over time. It is also important to have new members coming through to ensure diversity. The Government are keen, and I know the Opposition agree, to have people of different types—people of different ages, ethnicities, gender, different kinds of families—represented on the bench. The idea of the rules is to try to have some method of balancing that.

The hon. Member for Darlington is absolutely right that the family justice review chaired by David Norgrove pointed out that the system was rather inflexible, and that there was a need to allow magistrates to build their specialism. The Government therefore agreed to review the processes of managing magistrates’ sitting days, and the current system of writing to magistrates, which was mentioned. We agreed that those who are willing to sit extra days to accommodate family cases should not be discouraged from doing so by an arbitrary threshold.

The current work on the review and setting up the family court, which of course is a major undertaking, is complex. It requires detailed discussions with the judges, the Courts and Tribunals Service and others to get the  secondary legislation—the processes and procedures—right. It will be obvious from our future discussions that some areas are still being discussed and will need new rules. However, the discussion processes, and the preliminary liaising with the Judicial Office over the review of the magistrates’ sitting limits, have started. The discussions are under way. They are not at a point where there is a clear outcome, but clearly there will have to be before the family court is up and running at the beginning of next year. That is the timetable. It is being treated seriously, and I think I can give the sort of assurances that the hon. Lady asked for.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice) 2:30, 29 Ionawr 2013

I welcome the Minister’s words. We have his assurances on the record, and we have them on the record in the other place too. I do not know what else we want, so I am very pleased to hear what the Minister has to say on this issue. We look forward to working with the Government as things progress, because we have a shared aim in wanting the family courts to be as effective as possible. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.