In an interview with Detail Data, Lord Justice Gillen who is heading the Review of Civil and Family Justice in Northern Ireland, outlines some of the key recommendations he is making to government for major reform.
Q: As the head of the review what do you believe are the most important findings?
A: The key component of this review has been to introduce a fresh culture of problem solving courts, an outcome focused approach to the whole thing. There is an emphasis on inclusiveness, greater collaboration, joined up thinking. Once you grip that as the theme to the report everything else falls into place and therefore we have, for example, a single entity court that would speed up efficiency.
We have an increased emphasis on mediation, out-of-court solutions so that people will recognise that solving your problems happens in court but also out-of-court before you start.
We have introduced the idea of a one-stop shop in court so that when you go to court the judge is equipped with a number of tools to help you with your problems that will include for example anger management courses, addiction courses, debt counselling, counselling in general and so on.
There is also, again as part of that drive for efficiency, the concept of paperless courts, less paper, more use of Skype, more use of live television links.
There is also a great emphasis on giving more rights and representation to children. How do we ensure that the voice of the child is more profitably heard? Judges have to introduce themselves more often to the concept of speaking to children and so on. So those are the main thrusts of what we are introducing.
Q: Delay is a common theme in the report – how do you propose to tackle this issue?
A: The single tier system will speed up efficiency. At the moment the family court system is part of the overall court system so you have judges dealing with crown court matters, dealing with civil matters. Our suggestion is that there are three or four fixed family courts - that is all they will do in those courts, family work. That means that cases will be dealt with more swiftly, more efficiently.
We have also placed a greater emphasis on case management, early case management so that the problems are gripped at an early stage with fast tracking of for example contact disputes.
The concept of a one stop shop for example will cut down on delay because problems will be gripped at an early stage and dealt with at an early stage.
Q: Is the current system failing children?
A: What you have to appreciate is that this is a multi-agency issue; there is shared responsibility for children. Yes we have an important role to play but we are but a cog in the wheel of the overall system of looking at children and so one of the aims of this report is to ensure more collaborative thinking. It is a society problem; courts are one part of it.
Q: The report recommends opening the family courts to media – what are the benefits of such a move and why is this recommendation being made now?
A: The key to a successful family justice system is public confidence. The public must have confidence in the family justice system. And there is a tension; a tension between on the one hand the right of children to have privacy, to have protection from the public knowing all about their little lives and anonymity is important. On the other hand, there is a need for the public to know what is happening in the courts, courts must be transparent. Courts must be accountable.
The only way you can do that is by opening up the courts to the media so the public can find out what is going on - so long as we have appropriate protections for children within that system. I have to say I have found the media in Northern Ireland to be extremely responsible but so long as we do that I think we will increase public confidence. Let me give you one illustration: The case of Baby P in England; if that happens in the courts in Northern Ireland the public have a right to know about it. They should know who is to be held to account for misdemeanours with children. The only way you can do that is by opening up the courts to the media.
Q: Court is the default situation for many couples but the report places a greater emphasis on mediation and families trying to resolve their differences outside court – how do you bring about this major attitudinal and cultural change?
A: There is no doubt that solving problems outside court is a key component of this report. Introducing concepts such as mediation, concepts such as the New Zealand idea of parenting through separation are very important. In New Zealand for example before a separating couple are allowed to go to court they have to engage in a parenting through separation discussion and at that discussion children are kept absolutely to the fore. Parents are asked do they realise the impact this break-up is having on the children? Have they thought through how this is going to be done? Have they thought through how the children are going to be introduced to this and dealt with? That is a cultural change and it’s challenging, it’s challenging but it has to be done because unless we have this inclusive approach, whereby parents and those who are separating realise that the court system is but one method of resolving your difficulties, we are going to go on the way we have been going.
Q: Many parents breach court orders and without sanction, how do you plan to ensure people have respect for the system and that court orders are effective so children are not disadvantaged?
A: This is one of the changes that we are suggesting. Hitherto if a parent failed to comply with court orders, the sanction tended to be that you would risk going to prison and that simply doesn’t work in my view. I was a family judge for six years and I never sent a parent to prison because it can be counterproductive. The court must always hold that in reserve.
We have introduced new proposals that will include for example mandatory attendance at parenting classes. If you are caught speeding, one option is that you have to go to classes and these classes are extremely effective; it’s explained to people the dangers of speeding. Similarly with warring parents, fighting over contact, fighting over whether children can be seen. These are good people but they don’t realise sometimes the consequences of what’s happening, of what they are doing to children - how in years to come this will have an indelible effect upon them.
One thing we are proposing is community service orders. Hopefully in order to facilitate those we will be able to provide for care for children so you have no excuse for not going.
These are proposals that are constructive and novel. At the end of the day if parents refuse to comply then of course the court has got the ultimate sanction of imprisonment if you break a court order. Indeed on all court orders that are made in the family division we are intending to insert what are called penal notices, saying what the consequences are if you do not follow these orders. There are other means of doing this other than the sledge hammer of imprisonment.
Q: There are significant recommendations for reform but are these possible without significant investment from Government?
A: Well, what you have to recognise is the concept of invest to save is a key factor. If these reforms are carried through and if we have a court system which is swifter, more efficient, which is a one-stop shop, which is problem-solving you will find that the savings are enormous in terms of children being kept out of the criminal justice system.
I am staggered to read that one in 10 (back in 2011, it has improved a bit since then) children, who are looked after children, end up in the criminal justice system. That must change and if we do that children will have a better opportunity for employment, there will be less mental health problems, there will be less court appearances (courts are expensive) and there will be less school attendance issues.
If you invest to save the medium and long term savings will be enormous but in the initial stages there has to be some investment by government.
Q: Many community and voluntary groups working for children operate in the family justice arena or are affected by its out workings – how can they best influence change through this process to secure a better outcome for children? Will their responses be taken on board?
A: Well I have to say that is one of the matters that we emphasized right from the very start of this programme. We have had people on our reference group from the Law Centre, the Children’s Law Centre, Family Mediation, the Guardian Ad Litem Agency from the Northern Ireland Children’s Commissioner, the Council for Ethnic Minorities, Mediation Northern Ireland, Children’s Services, Citizen’s Advice, and NSPCC. We had them all on board, their enthusiasm was absolutely fantastic and I found them an enormous encouragement. They have been involved, they have been part of this process and that is a harbinger of things to come because this inclusive involvement of the communities and the bodies involved with children are crucial they must become part of the court system so I have every confidence that this will continue.
For example one of the changes that we are going to make is a Family Justice Board, which will have an overarching responsibility for the family justice system, chaired we believe by an independent person and they will have representatives of this kind of group onboard as well as lawyers, judges and solicitors. I regard it as a fundamental part of the family justice system that groups, communities, organisations such as I have mentioned be involved.
Q: When the consultation ends on October 28, what are the next steps and what is the timetable for reform? At the end of the process will the system primarily better serve the needs of children?
A: This is a preliminary report. There’s a consultation period for three months until the 28st of October.
I will have to take time to think about the responses but we have been working pretty hard on this and I am hoping it is going to be done in a relatively short time and that a final report will be presented to the chief justice, then it’s in the hands of government.
There are three departments involved here, the Departments of Justice, Finance and Health and it’s up to them then to implement our reforms.
Q: You have briefly touched on this, the problem solving courts – would you like to tell me a little bit more about them?
A: That as I have said is one of the cornerstones of the whole report. The courts will become problem solving. It means that the judge at a very early stage, hopefully at the first or second hearing will have identified where the problems are with the assistance of bodies such as anger management, addiction services, alcohol services, specialised courts.
We have for example, already got a first class domestic violence court up in Derry. We have strongly recommended the introduction of a family drug and alcohol court. They would be courts dealing specifically with those problems, for example if you have a mum who has got a drink problem, a drug problem there’s a court that deals specifically with that problem and she or he as the case may be will be offered professional assistance. But you will be back to the court every two to three weeks to see how things are going.
These are crucial components, a specialised approach and that’s part of the overall problem solving issue and by that we hope to cut down the number of court appearances, to reduce the number of people taken into care because with help hopefully parents can learn to look after children in a way perhaps that we haven’t done in the past. That is the essence of problem solving.
Q: Why are closer relationships with other jurisdictions around the world such an important issue?
A: I think for too long we have been a bit insular here in Northern Ireland. There is a wide world out there and I have in the course of this review been in contact by live link, by telephone link by conference and so on with judges from various parts of the world. From New Zealand from Australia from Canada, obviously England, Dublin, Scotland, Jersey from Holland and so on and it’s important that we realise that the problems that we face in the family justice system are common throughout the world. Every judge I have spoken to throughout the world is facing the same problems that we are facing here and sometimes they have better solutions than we have, sometimes they don’t, sometimes we are pretty good and sometimes they can learn from us. But it’s important that we realise that the family justice system is a diaspora. It’s a worldwide function and I think it’s important that we do have better communications, more lasting communications with judges from outside our jurisdiction and I am not even talking about England, Scotland and Northern Ireland. I have learned a huge amount for New Zealand, Australia and America. We have got to continue to do that and one of the recommendations is a total immersion of a judge from Northern Ireland in the justice system in New Zealand or Australia for three or four months and vice-versa.
Q: You have also touched on this as well, the need to become paperless courts and virtual reality courts and the benefits of that – is any of that happening or will that be a sea change?
A: it’s starting to happen. But the courts have to keep up-to-date they have to live in the modern world. Particularly for people under 35 the idea of coming into courts and seeing rafts of paper is completely foreign to them.
And if we going to be a transparent, accountable system we have to make sure that we run our system the way people run their lives. People nowadays use Skype, they use the internet, and we have got to do the same. That will cut down on an enormous amount of paper.
At the same time we have to realise that the days of people hanging around courts it is simply unfair. There is no reason why social workers who do such important work should not be beamed into the court from their offices. I am not talking about the hearing where they have to be cross-examined. I am talking about the intermediary hearings where they spend maybe two hours/three hours hanging about. Why can’t they do it by telephone conferencing, why can’t they do it by Skype, why can’t they do it by live communication?