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UK: EXCERPTS FROM 2011 NORGROVE REPORT
ON THE FAMILY COURTS

...We are aware that some will be disappointed by our decision to recommend against a legal presumption around shared parenting and to step back even from the recommendations we made in this respect in our interim report. The evidence we received showed the acute distress experienced by parents who are unable to see their children after separation. This is an issue we know countries around the world try to tackle, and fail. Our conclusion was reached reluctantly but clearly. The law cannot state a presumption of any kind without incurring unacceptable risk of damage to children. Progress depends on a general social expectation of the full involvement of both parents in the lives of their children before separation, not on changes in the law...

Cases take far too long. With care and supervision cases now taking on average 56 weeks (61 weeks in care centres) the life chances of already damaged children are further undermined by the very system that is supposed to protect them. And in private law, an average of 32 weeks allows conflict to become further entrenched and temporary arrangements for the care of children to become the default.

The cost both to the taxpayer and often the individual is high. Many respondents saw a need for increased spending. But we are not convinced that current resources are spent in the most efficient and effective way.

Both children and adults are often confused about what is happening to them. The need to address this will rise with the likely increase in the number of people who represent themselves in private law cases.

Organisational structures are complicated and overlapping, with no clear sense of leadership or accountability. No one looks at the performance of the system as a whole...

Children's interests are central to the operation of the family justice system. Decisions should take the wishes of children into account and children should know what is happening and why. People urged us to consider the need to take great care in consulting children, and for this to be handled sensitively and to take into account the child's age and understanding.

Children and young people should be given age appropriate information to explain what is happening when they are involved in cases. They should as early as possible be supported to make their views known and older children should be offered a menu of options, to lay out the ways in which they could if they wish do this...

Expert evidence is often necessary to a fair and complete court process. But growth in the use of experts is now a major contributor to unacceptable delay. The child's timescales must exert a greater influence over the decision to commission reports and judges must order only those reports strictly needed for determination of the case. We recommend that primary legislation should reinforce that in commissioning an expert's report regard must be had to the impact of delay on the welfare of the child. It should assert that expert testimony should be commissioned only where necessary to resolve the case...

The court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved in proceedings. Independent social workers should be employed only exceptionally...

We remain concerned about the value of residential assessments of parenting capacity, particularly when set against their cost and lack of clear evidence of their benefits. Research should be commissioned to examine the value of residential assessments of parents.

In line with our case management recommendations judges must direct the process of agreeing and instructing expert witnesses as a fundamental part of their responsibility for case management. This responsibility should not in effect be delegated to the representatives of the parties, as is often the case currently. More judicial control needs to be exercised over letters of instruction that are often too long and insufficiently focused on the determinative issues. In the order giving permission for the commissioning of the expert witness the judge should set out the questions on which the expert should focus. This will normally be done following discussions with parties...

A recent Family Justice Council report examined a sample of expert psychological reports. It identified serious issues with their quality and the qualifications of those carrying them out...

The issues that arise when families separate are usually complex and emotionally charged. Those who use private law are struggling with all the turmoil of separation. The risk is that the legal process of separating can itself cause further harm. Arrangements imposed by court may be inflexible and may sooner or later fail.

Most separating couples make their own arrangements for the care of their children and division of their assets, without resort to court proceedings. Others need more support, whether from dispute resolution services or by judicial determination.

Generally it seems better that parents resolve things for themselves if they can. They are then more likely to come to an understanding that will allow arrangements to change as they and their children change. Most people could do with better information to help this happen. Others need to be helped to find routes to resolve their disputes short of court proceedings. There needs to be a high quality service that is also capable of dealing appropriately with any risks to them and their children. And if that fails they need access to court processes that they and their children can understand, and that resolve conflicts as fast as possible and without inflaming matters further...

There are more fundamental issues that go beyond process.

Children say they do not understand what is going on and do not have enough opportunity to have their say.

There is a lack of understanding about parental responsibility, both legally and more generally: some mistakenly think the balance of parental responsibility shifts following separation, with one parent assuming full responsibility for their child.

This goes with the difficulty for all involved in assuring that children retain a relationship with both parents, and others, including grandparents, after separation where this is safe. Some have a perception that the system favours mothers over fathers...

The child's welfare should be the court's paramount consideration, as required by the Children Act 1989. No change should be made that might compromise this principle. Accordingly, no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.

For that reason and taking account of further evidence we also do not recommend a change canvassed in our interim report that legislation might state the importance to the child of a meaningful relationship with both parents after their separation where this is safe. While true, and indeed a principle that guides court decisions, we have concluded that this would do more harm than good.

We believe that many parents would benefit from attempting mediation. However we do not propose that this should be compulsory for either party...

Where an order is breached within the first year, the case should go straight back to court to the same judge to resolve the matter swiftly. The current enforcement powers should be available. The case should be heard within a fixed number of days, with the dispute resolved at a single hearing...

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The Family Justice Review (FJR) began work in March 2010 and is jointly sponsored by the Ministry of Justice (MoJ), the Department for Education (DfE), and the Welsh Government. It was established in recognition of increasing pressure on the family justice system alongside concerns about delay and effectiveness. There was a widely held view that the time was right to take a look at the system as a whole. The Review's terms of reference can be found in Annex A. A panel of six independent members and four director-level civil service representatives has conducted the Review. Biographies can be found in Annex B. David Norgrove was appointed as the chair of the panel and the other independent members were drawn from across the family justice system... They conducted three particular research projects to support our work. These reports will be published alongside the review. The reports are: 'Outcomes in family justice children's proceedings -- a review of the evidence'. This study summarises evidence on the outcomes of public and private law family proceedings involving children. 'Family justice and children's proceedings -- a review of public and private law case files in England and Wales'. This study analyses a sample of closed family cases in 2009 and aims to gain a better understanding of how public and private law cases involving children progress through the family justice system. 'Sustainability of mediation and legal representation in private family law cases -- analysis of legal aid administrative datasets'. This study analysed legal aid administrative data from October 2004 to July 2010 to examine outcomes from and repeat use of family legal aid services, in particular mediation and legal representation, in private family law disputes...


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