Family Law Group - Christmas Update

Date: Thursday 24th November 2016

At the end of October the FLBA held its annual national conference in Birmingham.

We thought that you might be interested in 2 key-note speeches from the President and McFarlane LJ.

Lord Justice Andrew McFarlane

1. His Lordship sought to explain the expression “nothing else will do” in the context of adoption.

2. He emphasised that Re B and the cases following it did not amount to a change in the law. The decision merely reinforced statute ie section 52 i (b) which requires the judge to decide whether “the welfare of the child requires the consent of the parent to be dispensed with”

3. The child’s welfare and proportionality are 2 sides of the same coin to be included in the balancing exercise with the concept of least intervention. In accordance with those principles the Judge must consider each of the realistic options for the child and balance each against the other to reach the right decision for the individual child or children.

4. In Re H it was clarified that whilst family re-unification is important there is no presumption of family reunion.

5. In Re R it was emphasised that there are cases where nothing else will do but adoption.

6. In the recent case of Re W both the ISW and the Guardian had misunderstood the case law and had misinterpreted the “nothing else will do” expression to recommend AGAINST adoption and in favour of a family placement without full consideration of the child’s welfare, when in fact the adoption option might well have been in the best interests of the child, who had been placed with prospective adopters aged 5 months and was now 2 years of age.

7. So, in short, “nothing else will do” must not be divorced from consideration of the child’s welfare.

The President

Private law cases are increasing, compounded by the removal of legal aid funding.

Care cases are up 23% at 15,000 this year on last year. If this continues we could be seeing 25,000 cases by 2019, with the huge increase in legal aid costs for care.

So the family justice system faces a very difficult future.

Against this background there is a total silence from government as to the way forward.

The President stated that we are ALL working far too hard already and it is a miracle that we have managed to maintain performance and continue to reduce time frames for care cases. BUT there is no more scope for economy and something has to give.

The President proposes:-

1. Improving procedure - The tandem system, where the child is always separately legally represented at ALL hearings is expensive.

The President will defend the tandem system, but we have to ask does everyone need to be legally represented at all hearings. At some hearings the child does not need the full team to be there.

2. Settlement Conferences - These are controversial, but the President reminded us that so was the IRH when introduced in 2003. We should not reject them “in principle”. We must keep an open mind. The government is interested in this.

3. Control the Paper - We need to reduce the amount of paper. This will speed things up. It saves money and does not prejudice the interests of children.

4. FDAC and PAUSE - FDAC - the Family Drug and Alcohol Court and PAUSE – the programme working with mothers who have experienced multiple removal of their children. These initiatives are important. They improve outcomes for parents and children AND save money. The Problem-Solving Court is the way forward. FDAC works – for every £ spent of FDAC there is a saving of£2.30. It also keeps children and parents together. Even so the government is still deciding whether to fund the FDAC national unit.

5. Court Closures - The only hope for the system is radical change. In future the court service will need to get money from the continuing programme of court closures. Mobile courts might be an option as public transport, particularly in rural areas becomes less available.

6. IT - We will need to look at digitisation. We will need to consider using systems such as Skype to save on witnesses and parties travelling to hearings.

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