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A quiet rebellion?

View profile for Mike Devlin
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Government decided some years ago that the family justice system was ripe for reform. Cases were taking too long. There was an over reliance on expensive expert witnesses. Lawyers paid by the hour had no incentive to settle cases quickly. Judges and advocates were not getting a grip of cases but were letting them spiral out of control. The voice of the child was being lost in the conflict between the parents.

Sir David Norgrove chaired the Family Justice Review and his recommendations formed a springboard for change. The economic crises demanded cuts in public expenditure. Legal aid was removed for most private family law disputes.

Cases where the state intervenes in family life – local authority care proceedings - are subject to a new protocol: The Public Law Outline.  These cases will now start and finish in 26 weeks unless the circumstances are exceptional. The process for adoption will be quicker and simpler. What is more, these reforms, this rush to justice, are being spearheaded by two of the most senior judges in the country: Sir James Munby, the President of the Family Division and Lord Justice Ryder of the Court of Appeal.

Munby P and Ryder LJ have been speaking on every available platform. Munby P has been generating guidance and “Views from the President’s Chamber” with alarming frequency to reiterate and underline the reforms. How then do we square these trumpet blasts of ineradicable reform and change with a rash of recent decisions from the Court of Appeal and the Supreme Court emphasising the need for courts at all levels to take painstaking care over decisions leading to adoption? Decisions which oblige the court to weigh carefully all of the options available, and only allow an order for adoption when “nothing else will do”.

How do we explain the Supreme Court and the Court of Appeal quoting and giving total support to the classic statement of Lord Templeman in Re KD [1988] 1 AC 806 “it matters not whether the parent is wise or foolish…. Public Authorities cannot improve on nature” and the development of that principle by Hedley J in Re L. (Care: Threshold Criteria) [2007] 1 FLR 2050 “society must be willing to tolerate very diverse standards of parenting…It is not the provenance of the state to spare children all the consequences of defective parenting”.

Are the proponents of reform really reluctant mouthpieces of the politicians? Are they encouraging an increasingly timid profession to stand up and fight for the rights of vulnerable and increasingly disenfranchised people at the edges of our society?

I’m not sure. I’m not party to the lunch table discussions at the Royal Courts of Justice. But it would be nice to think that the Establishment is offering individuals opportunities to challenge the new order.

I am a supporter of review, reform and change when it is for a positive purpose. However when the hand of Government is behind change we have a right to be suspicious. Especially when the changes are firstly driven by the need to cut expenditure and secondly involve the state restricting the right of the individual to challenge, in court, the State’s exercise of its powers.

The new Public Law Outline coupled with reduced access to expert witnesses and behind the scenes threats to remove care proceedings from judges and place family justice in a tribunal system is potentially the biggest challenge to individual rights and freedoms for centuries. And this is happening at the same time that on a daily basis we hear of one autonomous institution after another being exposed for corrupt and abusive behaviour.

One of the greatest qualities of our democratic society is the freedom to shine a light on the State’s activities and through the courts to challenge the State’s application of its laws. We will all live to regret the moment that this freedom is eroded. Perhaps even unconsciously that is what is moving the Lords and Lady Justices at the moment. We can only hope.

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