Duncan Lewis

Family law groups oppose plans for setting up of time frame to decided care cases

Date: (15 November 2012)    |    

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Government’s proposed 26 week time frame for courts to conclude care cases was not only impractical but also in most cases constituted potentially unlawful interference with judicial discretion say family law groups.

The family law groups which included the Law Society, Family Law Bar Association (FLBA) and Association of Lawyers for Children while giving evidence to the justice committee agreed that unnecessary delay in care cases was harmful to children but at the same time they opposed the setting of an arbitrary time limit.
Co-chair of the Law Society’s family law committee, Naomi Angell, said 26 weeks was ‘inadequate’ for most cases.
In written evidence to the committee the Society said the care proceeding cases were often complex, dealing with vulnerable children and parents, requiring related assessments and sometimes running in parallel with concurrent criminal proceedings.
It added that cases which involved finding of complex facts, or where large families were involved, or absent family members or if the child was in need of complex medical aid such as, such as a disability, could rarely be resolved in less than 26 weeks.
The judge in charge of modernising the family justice system, Mr Justice Ryder, told the NAGALRO conference last month that data being collected from the courts showed that the 26-week timetable was only achievable in about 30% of cases.
The members from the various law groups said that trying to set up a time limit would not solve the problem as the cases which could not be finished under the stipulated time would lose their place in the queue.
In written evidence to the committee, the FLBA identified 19 factors that created delay in the system and said that the proposed time limit is ‘not a magic bullet’.
It warned that the system is ‘already in crisis’ and that if the limit was implemented without the causes of those delays being addressed, judges will have to make decisions on the basis of incomplete or inaccurate information.
The committee was told that delay could be ‘purposeful and necessary to ensure a just and fair processes in cases where, there was a requirement of, specialist expert reports or where parties had learning difficulties.
Co-chair of the Association of Lawyers for Children, Martha Cover, told the justice committee that having a target was fine but the 26-week time limit could not be a deadline.
To do so, she said would be a ‘potentially unlawful interference with judicial discretion and the rights of the children and parents to a fair trial’.

Cover was also concerned that the language used in the draft legislation in relation to extending the 26-week timeframe undermined the principle that the welfare of the child is paramount.