Make Every Hearing Count: A Response

The Criminal Bar Association recently voted, overwhelmingly, to take industrial action over longstanding and well-evidenced issues which Government has failed (or refused?) to grapple with. Claims that there has been an exodus from the Criminal Bar are not exaggerated and are real.

But, over in the next building, the Family Court is not without its problems. The Family Justice System is crumbling and, as things stand, it is not an exaggeration to claim that many at the Family Bar will follow our colleagues at the Criminal Bar.

In order for the Family Court to discharge its duties, it relies upon a relatively large number of external organisations: CAFCASS, local authorities, police, health services, solicitors and barristers immediately spring to mind (there may well be others).

Each of these organisations has its own pressures and difficulties, with many suffering from chronic under funding and lack (or ineffective allocation) of resources.

Whilst the following may be an over-simplification of the situation, the Family Justice System (of which the Family Court is head) is like a machine. A machine is made up of different components, all of which have their own function. The overall success of the machine (the Family Justice System) is dependent upon each of the components (CAFCASS, local authorities, etc.) being able to function and operate properly. Given the unique role each component of the Family Justice System plays in the success of the overall system, one component cannot simply carry the weight of another (or at least it may be possible but the same results cannot reasonably be expected). Nor can any of the problems be addressed in a vacuum.

So, when the President of the Family Division issues “‘Make Every Hearing Count’ Case Management Guidance in Public Law Children Cases: March 2022,” it is little wonder that there is collective eye-rolling and exasperation amongst the front line of the Family Justice System. The President of the Family Division’s opening paragraph begins to identify the problem:

“…The volume of work in the system currently exceeds its capacity to meet this statutory deadline…”

The President goes on to give a number of central points about points which ‘should be generally adopted’ and whilst I do not seek to set out these points in this article or seek to critique them, I make the general observation that adhering to all points requires all those organisations and agencies who feed into the Family Justice System to be properly funded, properly resourced and properly equipped to ensure that all information is put before the Court in the way envisaged by the President.?

All of this comes just as we come out of an unprecedented pandemic which has disrupted life as we know it and placed all those working in the Family Justice System (indeed, in any of the justice systems) under immense pressure.

Whilst the President’s central points and tenor of ‘Make Every Hearing Count’ are laudable, as a front-line practitioner, I do not believe that you can begin to address the President’s points in a vacuum. The central points are, in my view, aspirational as they do not currently reflect the reality of life on the ground of the Family Justice System.?

The unfortunate consequence of ‘Make Every Hearing Count’ is that Family Courts up and down the country will seek to implement the central points contained therein with each component in the machine being placed under increasingly intolerable pressure. When a machine is placed under intolerable pressure, that pressure builds and builds, and the ensuing breakdown is often catastrophic: we hoped that tragic cases such as Victoria Climbie and Baby P were a thing of the past but recent months have seen reports of similar such cases. Whilst there may be other issues at play in those recent cases, the question must be asked whether they are indicative of the difficulties that are at play on the front line which will only be compounded by the new expectations on us all.