Poonam Bhari
The latest View from the President’s Chambers: July 2024 [1], begins with a look at private law cases.
The ‘Pathfinder’ problem-solving court model, which went live for private law cases in the Birmingham and Cardiff areas in April/May 2024, had already met with success in North Wales and Dorset in terms of minimising delay, encouraging a more collaborative and less adversarial approach between parties and leading to swifter resolution of disputes. Fewer cases return to court and the consequent harm for the children and parents is also lessened.
The president makes the point that more funding is needed for the Pathfinder model to be rolled out to other court areas and / or nationally. Particularly, so that Cafcass, which plays a role in providing a child impact report before the first hearing, has the necessary resources to assist the court and parties.
The changes to the Mediation Information and Assessment Meeting (MIAM) process, which came into effect in April 2024 are also a welcome step towards minimising conflict and delay in private law proceedings. There are fewer MIAM exemptions and evidence in support must be provided where an exemption is claimed. It is no longer to acceptable for a party to simply refuse to engage in a MIAM, where they are not exempt from doing so.
In terms of public law, the President reminds us that the Public Law Outline (PLO) was relaunched some 18 months ago, with the need to focus on concluding cases in the 26 weeks timeframe and the consequent need to adhere to tight timescales and compliance with court directions to progress each case. However, significant backlogs remain with delays and some cases progressed slowly, this seemed to be ‘normalised’ but improvement is beginning to show.
In London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183, Mr Justice MacDonald, criticises the “manifest and wholly unacceptable delay for E” (§2), which led to a new born child remaining in foster care for over two years before a decision could be made about the child’s long-term future arrangements. MacDonald J set out in his judgment that the case had come before nine judges across seventeen hearings, which is well outside the regime envisaged by the PLO. The case had also passed through the hands of a total of thirty-three different advocates, clearly there was a lack of judicial and lawyer continuity for E. The impact of the delays on the child are significant and likely to have a lasting impact. The Judge stated at §83, “Bluntly, this case has demonstrated nearly every type of poor practice that FPR 2020 Part 12 and in particular, the Public Law Outline in PD12A was intended to eradicate. That these matters of poor practice are still occurring demonstrates that the provisions of PD12A are still not being applied consistently and with sufficient rigour by the courts, legal practitioners and welfare professionals”.
Re E provides a stark reminder of the negative impact on the life of a child, when each day, week, month and year waiting for a final decision about the future leaves the child in limbo, not able to move forward with security and stability.
[1] https://www.judiciary.uk/guidance-and-resources/a-view-from-the-presidents-chambers-july-2024/