Sir James Munby, until recently president of the Family Division of the High Court, has been appointed as chair of the Nuffield Family Justice Observatory, currently being established to support best practice in the family justice system.
In 2016 you warned that the care system was "facing crisis". Have things improved or got worse - is the system in crisis now?
The system is in crisis. The rate of increase in care cases has slowed down, but it is at an unprecedented level. It is at a level that the courts can't really cope with. The volume of cases is going up, but resources available to deal with them are not. The fact that there is a continuing crisis is exemplified by statistics showing it is taking longer to deal with cases.
My own view is that unless something is done in the fairly near future, both the care system in terms of cases coming to court and in terms of the general number of children in care is going to reach an unsustainable point at which it will not be able to cope.
Public law cases are currently taking in excess of 30 weeks, is the 26-week limit introduced four years ago, now unrealistic?
It's not so much a question of it being unrealistic, it's whether it's the right thing to do. The 26-week limit was introduced in 2014 and there were a lot of sceptics at the time saying you can't deal with care cases properly, and fairly, and justly, in 26 weeks. We demonstrated that is not so. When you bear in mind the average time of care cases at the time of the family justice review was around 62 weeks, we have managed to transform the system in a way that is wholly beneficial.
I'm not suggesting there is any scientific magic in 26 weeks, but what is concerning is not being able to meet a target which we were meeting and which is the right objective. The problem we have is courts have fixed resources to deal with a volume of work over which they have got no control.
If the volume goes up and the resources don't go up, the only way the system can cope is by everything taking longer. There are only two ways to solve that problem - one is to limit the volume to what can be done by the existing resources. The other is to increase the resources to match the increase in volume. The government is not prepared to do either.
Has Brexit resulted in a lack of government focus on the issue?
I'm not going to make any observation either on behalf of the Nuffield Foundation and the observatory, or personally, about Brexit. My own belief is that the problems were present long before Brexit and the problems have not been solved. One of the bald facts, which emerges from all the statistics, is that although the rate of increase in the number of children in the system may have gone up in recent years, they have reached a crisis point in the last two years because both the courts and local authorities have reached a point where the numbers are now so great that they simply can't cope. The underlying problems go back the best part of 10 years. The implication of that is it is nothing to do with a particular party which has been in power for part of that time.
Do you agree with Isabelle Trowler's recent call for cases where a decision to take a child into care could "go either way" to be diverted away from court?
Fundamentally, this is something which local authorities have to decide. After all, it is the local authority that begins the case at court, and it is the local authority that sets out a care plan. I think what may be needed is a more robust decision-making process, with a greater involvement in some local authorities of more senior management and more input from the legal department, as to what the right way forward is. It would be wrong to say that the default position in cases of doubt should be to go to court, just as it would be to say the default position should be that cases of doubt don't go to court. One has got to have a more sophisticated approach. Social workers and managers are there to take difficult decisions.
What do you hope the Family Justice Observatory will achieve?
We know in headline terms what is happening with the system, but we don't know why it is happening. Until we know why something is happening we can't work out how to take steps to stop it. A lot of the work in the early stages will not so much provide the answers, as give a safe platform for asking the next batch of questions.
The observatory spent a year consulting with the family justice system as to what kind of observatory it wants and we have now got to the point where we are about to launch the fully worked-up observatory. The idea is that from spring 2019, for about four years, we are going to go through a pilot phase to understand where we should be focusing the observatory's endeavours. We have got to be on the long haul for this. We have got to have a long-term research programme in order to maximise the prospect that at the end of the four-year period we will have identified a sustainable long-term operation which will go on indefinitely producing the kind of research we need and will mean that in five or 10 years' time family justice professionals will not be running around scratching their heads asking the kind of basic questions they are having to ask today.
SIR JAMES MUNBY CV
- November 2018: Announced as chair of the Nuffield Family Justice Observatory
- January 2013 - July 2018: President of the Family Division of the High Court
- 2009 to 2013: Lord Justice of Appeal
- 2009 to 2012: Chair of the Law Commission
- 2000 to 2009: A judge of the Family Division
- 1971: Called to the bar
- Graduated from Magdalen College, Oxford