Civil Justice Modernisation

Ministerial Statement – in the Northern Ireland Assembly at 10:30 am on 23rd March 2021.

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Photo of Alex Maskey Alex Maskey Sinn Féin 10:30 am, 23rd March 2021

I have received notice from the Minister of Justice that she wishes to make a statement. Before I call the Minister, I remind Members in the Chamber that, in light of social distancing being observed by the parties, the Speaker's ruling that Members must be in the Chamber to hear a statement if they wish to ask a question has been relaxed. Members participating remotely must make sure that their name is on the speaking list if they wish to be called. Members present in the Chamber must also do that by rising in their places, as well as by notifying the Business Office or Speaker's Table directly. I remind Members to be concise in asking their questions.

I also remind Members that, in accordance with long-established procedure, points of order are not normally taken during a statement or the question period afterwards.

Photo of Naomi Long Naomi Long Alliance

I am here today to outline my plans for modernising civil and family justice over the remainder of this Assembly mandate.

I want to set out the work that has already commenced and the further steps that I plan to take over the next year. I am investing time and energy in the area because it is an important one that touches on the lives of so many citizens, often at a point when they are facing some of life's most significant challenges, such as divorce, financial difficulties, injury or the death of a loved one. An effective civil justice system is an important part of a well-functioning economy, helping businesses and their customers to settle disputes quickly and effectively.

While criminal justice often draws most attention, many more people come into contact with the civil justice system each year. For example, in the last business year, 2019-2020, nearly 102,000 parties were involved in civil and family proceedings. Many will have had a positive experience, with cases dealt with efficiently and effectively, resulting in a swift resolution. Others will have found the process long, difficult and expensive. I want to do all that I can to support more citizens to resolve their disputes as quickly, fairly and inexpensively as possible in a system that is seen as just, proportionate and accessible.

Despite all the difficulties caused by COVID-19, we are starting from a good place, with an independent judiciary, a capable legal profession, hardworking staff in the Northern Ireland Courts and Tribunals Service (NICTS) and other professionals, such as courts children's officers, all dedicated to ensuring that effective justice is available to all. I support all the effort and commitment on the part of so many people by delivering change that will make the overall system more effective in meeting the needs of citizens.

A wide range of partners support the delivery of civil and family justice, and arrangements for determining how the system should operate are complex and somewhat piecemeal. Policy responsibility is spread across three Departments, with Finance and Health responsible for most of the substantive law and my Department responsible for the operation of courts and tribunals. There is a case for rationalising that complex set of responsibilities. However, recognising that this is a short mandate and that we are also in the midst of a global pandemic, I plan to focus instead on the changes that I can make more immediately to improve the current system for the citizens who use it. The changes will also help to set the foundation for further reform in the next mandate in a post-COVID environment.

Focusing efforts on the more immediate benefits for citizens will make the best use of the time and resources that I have available. The changes that I am outlining are intended to do two things: firstly, to make the civil and family justice system more accessible for citizens; and, secondly, to make the system fairer, more proportionate and more responsive. In identifying ways of delivering those outcomes, I have had the benefit of the access to justice reviews and Sir John Gillen's civil and family justice review. I am grateful to the Lord Chief Justice for having commissioned Sir John's work and to Sir John for his considered and very detailed report, which contains well over 400 recommendations for a range of sectors and organisations. Around one-third of those recommendations touch directly on the work of my Department. They have helped to shape my priorities for improving accessibility and for making the system fairer, more proportionate and more responsive.

I will use the remainder of the statement to outline the actions that I have initiated and others that I plan to undertake to deliver on each of the priorities.

I will start with improving accessibility for citizens. For many, the civil and family justice system feels unduly complicated. We need to do more to simplify the system and make it easier for everyone to access and to use. Clearly, that is not going to happen overnight, and my focus in the short term will be on taking tangible steps forward and continuous improvement while setting a longer-term ambition for transformation of the system through digital technology.

I want to highlight three areas in particular for continuous improvement. The first relates to litigants in person. Litigants in person are citizens who, for a variety of reasons, represent themselves in court proceedings. In partnership with Ulster University and the Northern Ireland Human Rights Commission (NIHRC), my Department set up a litigants in person reference group in order to help identify and break down barriers that are faced by litigants in person and to improve relationships between them and the other court actors. The group is chaired by a retired solicitor with considerable experience in the advice sector, and it includes representation from the legal profession, the judiciary, Ulster University, the Human Rights Commission, my Department and, most importantly, litigants in person. The group has made good progress on building understanding and identifying areas for improvement.

I am grateful to all those involved in the reference group for their valuable work, and I look forward to continuing to build on that initial success.

One of the messages that has come out of the reference group is the need to improve understanding of how best to engage with the courts system and to reduce the fear of doing so. That feedback has helped to shape the 'Private Family Law Action Plan' that I am launching jointly with the Minister of Health.

A key early component of that rolling action plan is to demystify the family courts by providing additional information and tools to assist separating parents to navigate the system, to resolve more issues for themselves and to know where to seek further help. A number of animations and easy-to-use documents, such as an outline parenting agreement, have been produced as part of the action plan. The action plan will evolve over time, with further products to be developed to help separating parents to resolve disputes in the interests of their children. Ultimately, it is the welfare of children that lies at the heart of the family justice system and the 'Private Family Law Early Resolution Action Plan'.

The third area where I intend to deliver continuous improvement is in ensuring that appropriate supports are in place for the more vulnerable members of our community who come before the courts. Effective access to justice is dependent on that. I am pleased that, through the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, by including provision for special measures and provision to prohibit perpetrators from cross-examining their victims in person, I have been able to enhance the protections available to support victims of domestic abuse to give their best evidence in the family courts.

I will now look at other types of special measures to support other vulnerable members of our community in accessing justice. One particular area of focus will be a registered intermediary support for those with communication difficulties. A successful scheme already operates in the criminal courts, and I plan to consult later this year on creating a similar scheme to support vulnerable users in the civil and family courts.

All those acts of continuous improvement will help to make the civil and family justice system easier for citizens to access and to use, but, on their own, they are not enough.

The COVID-19 pandemic has shown us the transformative role that digital technologies can play in delivering services in new and more accessible ways. IT now plays an important role in every part of our lives, including how we order goods and services, connect with others, engage with government or access learning. Many citizens now expect to be able to interact with services at a time and in a way that is convenient for them. Justice also needs to be able to respond to those new expectations, and there is a growing case for improving access to justice through technology. For that reason, prior to the COVID-19 pandemic, the Northern Ireland Courts and Tribunals Service embarked on an ambitious modernisation programme that, over the coming years, will deliver changes, in partnership with key stakeholders, to simplify and modernise the current system and improve access to justice for citizens.

These are early days, and, while our efforts have been hampered by the need to divert resources to respond to the pandemic, I am pleased with the progress that has been made so far. NICTS's modernisation programme applies to civil, family and criminal courts as well as tribunals. It will redesign services and adopt digital delivery channels that will improve access to justice and provide simpler and more effective services, making it easier for citizens to interact with court and tribunal services. The programme will also deliver a modernised court and tribunal estate to support new ways of working.

As part of the modernisation programme, NICTS is developing a digital strategy for consultation over the coming months with the judiciary, stakeholders and interest groups. The strategy will inform a future road map for the delivery of services. Significant work has already commenced on this ambitious modernisation programme, including the installation of enhanced audio and video technology in 41 courtrooms and the implementation of Wi-Fi across the courts and tribunals estate, to facilitate the display of digital evidence and electronic case bundles. The courtroom technology upgrade project will continue throughout 2021, and the use of electronic case bundles in the courtroom will also be piloted later this year. It is encouraging that the probate online portal, which is the first customer-facing change under the modernisation programme, will be introduced in May. That new portal will enable users to complete key stages of the probate process digitally. It is a pilot service redesign project, so vital learning from the design and delivery of the probate online project will be applied to other NICTS service innovations, and we will build similar online processes for other areas of business.

Aspects of the Northern Ireland Courts and Tribunals Service modernisation programme have been accelerated over the last year. Remote working capacity has increased rapidly. Working with partners and stakeholders, we want to build on that momentum to implement a modernisation programme that will provide tangible benefits through a more proportionate system that makes better use of technology and allows faster end-to-end completion of cases. I am keen to explore ways in which online dispute resolution can complement the justice system. My officials are undertaking feasibility work in that area, and I hope to be in a position to launch a pilot online dispute resolution system focused on small claims later this year.

I will turn to the second of my priorities: making the civil and family justice system fairer, more proportionate and more responsive. The system should minimise acrimony and stress and allow disputes to be resolved as dispassionately as possible, using tools that are appropriate to the complexity and nature of the issues under dispute. The system needs to allow disputes to be settled more swiftly, to offer greater choice and to operate at a lower cost.

The court process itself can be stressful, and the adversarial nature of proceedings can increase acrimony and make it difficult to find long-term sustainable solutions. That is particularly the case for separating parents. Each of us in the Chamber is aware of constituents who have fought intractable battles through the family courts. That is of benefit to no one, and particularly not to the children who often find themselves caught in the middle.

The central aim of the action plan on private family law early resolution is to improve the lives of children by encouraging earlier resolution of disputes between separating parents. I am under no illusion that that will be easy to achieve. There are cultural barriers to overcome, and there is a need to change hearts and minds. Many separating parents are not aware that they do not need to engage with the justice system in order to resolve parenting disputes, and others want, for whatever reason, to have their day in court. The action plan will be there to help separating parents who want to resolve disputes themselves and encourage others to try a different approach in the interests of their children. Changing practice will not be a quick or easy process. It will be a marathon rather than a sprint, but it is an exercise worth undertaking.

As part of the action plan, I will examine the feasibility of introducing mediation in private family law cases on a pilot basis. There is much more to do before we can introduce a pilot, but the idea needs to be fully explored to see whether it offers a viable, affordable way to help separating parents to resolve disputes early in the justice journey. Any approach that achieves early resolution would be a good thing, particularly for the children involved, and would avoid the stress and expense of legal proceedings that can worsen relationships and make successful co-parenting difficult to achieve.

The other issue that I will tackle in relation to family law is delay. That is a matter of great interest for the judiciary, and I am keen to do what I can as well. Earlier resolution of disputes would certainly help, as it would reduce the number of cases and leave more space in court lists for those who really need to be there. There will also be areas of court-linked processes where changes could reduce delay. Many of those processes are outside my Department’s control, but one that is within my remit is the speed with which we deal with legal aid applications in family cases. One factor that can cause delay is the process for appointing and paying expert witnesses. I am pleased that we are addressing that through a pilot that launched on 25 January. The pilot is testing a streamlined approach to appointing expert witnesses in the family proceedings court as well as standardising the legal aid rates for them.

Opportunities to make the system fairer, more proportionate and more responsive are not limited to family justice. There are a number of areas in which I want to make improvements to civil justice. Mediation is one of those areas and, to enhance its use, I plan on formalising legal aid remuneration for mediation in civil proceedings. I aim to consult on the issue before the summer. The evaluation will inform wider consideration of the effectiveness of mediation in resolving matters without recourse to the courts.

Proportionality is also about making sure that civil cases are heard at the right court tier in line with their value and complexity. That aim is at the heart of the consultation on changes to the County Court jurisdiction, which I launched on 4 February. Increasing the financial jurisdictions should ensure that more court users have certainty about costs at the outset of proceedings. That should enable them to make better-informed decisions about whether to take or defend legal action. Importantly, my proposals mean that more cases could be heard in the small claims courts where processes are more straightforward, user-friendly and designed so that cases can be progressed without legal representation.

Fairness is also at the heart of the changes that I propose to the legal framework for setting the statutory discount rate. The rate is used when determining settlements in personal injury cases. I introduced the Damages (Return on Investment) Bill on 1 March. The aim of that Bill is to ensure that the assumptions on which the discount rate is set better reflect the reality of how claimants invest and, in turn, that the discount rate provides 100% compensation to people who have suffered injuries. A further related area that I want to look at is protecting compensation for children arising out of civil claims, such as for personal injuries. Currently, it appears that some compensation settlements for children are not approved by a court or paid into court for protection. I intend to consult on how it might be possible to ensure that all such settlements can be protected in an appropriate way.

Fairness is also a key principle underpinning the housing possession court duty scheme. That important support service, established by David Ford when he was Justice Minister, provides information and advice at the door of the court to homeowners facing repossession and renters facing eviction. I am pleased that I have been able to continue funding the service, which is delivered by Housing Rights. Helpfully, it is also linked to a broader programme of housing advice funded by the Department for Communities. Projects such as the housing possession court duty scheme play an important role in access to justice. I am heartened to see the interest being paid to the project in England and Wales, where the Government are working with the judiciary and other stakeholders to develop a similar service. That type of service is critical to helping to support our citizens when they are at their most vulnerable.

In many ways, the housing possession court duty scheme encapsulates what I am trying to achieve through the broader programme of modernising civil and family justice: having a clear focus on improving the experience and outcomes for citizens; making it easier for citizens to access justice; making the existing system fairer and more responsive; and dealing with disputes in a swifter and more proportionate way. Achieving those aims across civil and family justice will not be straightforward. I have deliberately set out an ambitious programme of work for the short time that is available in this mandate. I am committed to change, as, I know, are many of you. Together, we can improve the lives of citizens who need the civil and family justice system and lay a path for future reform. As I have outlined, we have made a good start, but much remains to be done by my Department and our justice partners. I commend the statement to the House.

Photo of Paul Givan Paul Givan DUP 10:45 am, 23rd March 2021

Sometimes the Back Benches are a little more comfortable, Members.

I welcome this high-level document's ambitions for the longer-term transformation of the justice system. I think that all of us will be able to find common ground on that. Looking at it in more detail, I have no doubt that the Committee will want to see clear objectives, timelines for implementation and so on. However, as far as the high-level document goes, I welcome it.

Throughout COVID, the need for technological transformation has come to the fore because of the poor existing technology, which has highlighted the need for significant investment in the technology used in our court system. In 2017, a previous Committee recommended the use of online resolution for small claims, for example, so this is an area that Members have raised before. Does the Minister feel that the resources will be made available in her Department to have the technological transformation needed to facilitate online resolution?

Finally, in a conversation that the Deputy Chair of the Committee and I had with the Lord Chief Justice, he indicated his view that, to keep the focus on the transformation that is needed in the courts, there is an argument for operational decisions to be moved to an independent body for which the presidents of the courts could be responsible, rather than resting in the Department of Justice. I do not have a view on that. Does the Minister feel that the Lord Chief Justice has merit in advocating that?

Photo of Naomi Long Naomi Long Alliance

I thank the Member for both of his questions. The modernisation programme, particularly the digital strategy, remains part of our core project for the next year, so it will have been bid for within our normal boundaries. Of course, the budget settlement will provide challenges, but this is a priority for the Department. We actually managed, because of COVID, to make huge progress in that regard by renewing and introducing better technology to the courts. As a result of that investment, we are now able to move forward much more rapidly than originally anticipated.

Some of that will have been funded by COVID investment but will be available in the longer term for us to make use of. There are also considerable savings to be made from using digital technology in the criminal courts and in the family and civil courts. Although the upfront investment is considerable, the savings that the individual, as well as the court system, will make down the line are significant. It is therefore important that we keep that as a priority, particularly in the context of an increasingly challenging budget situation.

There are disparate views on where the operational decisions should be made and on whom the lead should be. The roles played by the Civil Justice Council and the Family Justice Board are hugely important. The leadership that they are able to show around the issues, and some of their focus on them, has been important as we look at some of the operational measures that can be introduced. I have discussed this with the Lord Chief Justice, because it will ultimately be a decision for him, but I would like to see them move from shadow format to a more formal operating standard, as they have contributed hugely to changes, and I believe that they have a continued contribution to make.

It would also be helpful if their membership were to be expanded to include court users as well as professionals. More laypeople could also be involved. I have suggested to the Lord Chief Justice that the Department should be engaging regularly at ministerial level with the council and the board, because we have to have a streamlined and focused approach to how we take that forward, and that approach has to be coordinated. There are many moving parts in the civil and family courts, and the Department has much less leverage in what it can and cannot achieve. Thankfully, the relationships among those moving parts are particularly strong at this time. There are good relationships among the judiciary, the Lord Chief Justice and his office, the court system and those who are involved in many of the panels and boards. It is therefore about trying to build on those good relationships and ensuring that we coordinate our activities and investment. To be blunt, I am less concerned about where overall responsibility lies.

Photo of Linda Dillon Linda Dillon Sinn Féin 11:00 am, 23rd March 2021

I thank the Minister for her statement. Like the Chair of the Committee, I welcome the high-level document. The devil will be in the detail, no doubt, but I welcome its intent.

As the Minister will know, one of the issues that was raised regularly during the passage of the Domestic Abuse and Civil Proceedings Bill was the abuse, rather than the use, of family courts, and the abuse of them by abusers through bringing their victims back to court repeatedly. Some work was done on the Bill to improve that — we did as much as we could — but we know that the system is still very open to abuse. I want to know whether more can be done. I am interested in what you said about having laypeople and court users on the council and the board. That is what we are missing. We need to ensure that those who are being put through the system and those who advocate for them have a say in how the system works, because it is not working. It is not that it is broken. Rather, it was never right in the first place. It is a system that was created by men for men over hundreds of years. I say that with the greatest respect to many of the men in the Chamber and outside it, but it is the truth. We have to look at it and look at having serious reform.

Photo of Naomi Long Naomi Long Alliance

There is significant female leadership now, in the family courts in particular. Many of those who work in family law are women who are there representing the needs of male and female participants in the court system. There has been a huge change in the culture in the courts, and a lot of that is down to the leadership shown by the chair of the family court board. That is important. She has shown real vision and leadership around how the issues should be dealt with. She has also shown a willingness to innovate and be creative in dispute resolution.

It is true to say, however, that the family justice system and the civil justice system can sometimes be affected by the general adversarial nature of any court system. The criminal courts are obviously adversarial, and they are intended to be so, but the family courts and civil courts can often be perceived as being similar when, in fact, they should be a dispute resolution tool. Of course they are the end of the line when it comes to dispute resolution, in that somebody will have to make an adjudication, but they should not be viewed as a forum for combat between warring parties over childcare and other issues. They should be seen as a way to civilly resolve disputes about the care of children in a way that is in the best interests of the child, and I think that we need to reset, if you like, our attitudes and expectations around the court. That is one of the reasons why I am very focused on the idea of support for mediation as part of the process, both in the civil and family court jurisdictions. I believe that, by encouraging, supporting and funding mediation, we may get to a point where we have less breakdown in relationships post-separation, which would allow families to co-parent in a way that is constructive and is good for the well-being of the child. That should be at the heart of the system and is at the heart of what the family courts are trying to achieve.

As I said, I think that that adversarial nature of the courts is something that the family courts and the civil courts try very hard to avoid. For example, the litigants in person issue is one that we are very conscious of in civil justice. People ought to be able to represent themselves with respect to something without having to go and find a solicitor, a barrister and all the other things that will potentially lead to a more combative approach, but it is also important that, when we set, for example, the financial limits around these things, we do it in a way that encourages both sides to operate on that basis, as opposed to an inequality of arms building up in either court. That can be incredibly intimidating for someone who cannot and does not want to have legal representation but finds themselves facing off against a barrister over something as personal as a personal loss or the care of their children.

Photo of Sinéad Bradley Sinéad Bradley Social Democratic and Labour Party

I thank the Minister for bringing her statement to the House. She will be aware that retired judge Sir John Gillen criticised the slow response from the Department of Justice on the implementation of his report into how our justice system handles sexual offences cases, and today the Minister has presented myriad reference groups and action plans. However, I have sincere concerns, Minister, that there appears to be no reference to resource being attached to this. While I do welcome the acknowledgement that the problems exist and that there is a need for coming together to resolve them, it does all appear pointless if there is no targeted ambition to pull down resource to implement any recommendations that come out of those reference groups. Can the Minister speak directly to that point, please?

Photo of Naomi Long Naomi Long Alliance

I am more than happy to do so. Before I came to the Chamber, I met Sir John Gillen because, as you know, his reviews have been around for some time, particularly in respect of this. I will say two things. The Member has taken one extract from a very long interview by Sir John Gillen with respect to serious sexual offences. He said that he had no doubt that I was absolutely committed to making change. He said that he welcomed the progress that had been made but that, like everyone else, he felt that that progress was too slow. He also acknowledged that the justice system, more generally, is slow to change and that not all the levers are within the Department. So, we need to be full and clear when we quote people, otherwise we might misrepresent their actual assessment of the situation.

With respect to this, again, his view was very clear. He feels that it has taken too long for us to get to this point. He would like to see more progress more quickly. Who does not? However, the reality is that I have one year left of a two-year mandate, and therefore I have prioritised particular issues on which I believe we can make significant progress in the next year. I believe that they will also pave the way for any incoming Justice Minister to be able to take forward the more substantive reform of the system to which I referred at the beginning of my statement.

When I spoke with Sir John Gillen, he said that he had a checklist, as you would expect, beside him before the call started and that the things that I said I was going to prioritise were all the issues that he had on his checklist. So, with respect, we have managed to capture, if you like, the priorities that he would capture if he were faced with the same time challenges that I have, albeit both of us share a much greater ambition for change.

Of course there will be challenges with resources, and I cannot deny that any more than anyone else. The one area that I have no control over is the budget that is given to me. I can only control where it is spent, but not how much I get. If others want to lobby for me to get more money in the Department of Justice, I can assure you that there are substantive projects on which that can be spent, and there is no shortage of issues that I could address, even in the next short period of a year to improve justice. However, even within the constrained budget that I have, we are not talking only about action plans on paper. My statement referred to specific pilot projects that will be rolled forward, and we have the resource to do that. I have talked about investment in technology; we have set aside resource to do that. I have also spoken about our forward plans to look at the structures so that we are in good shape come the next mandate when we will, hopefully, have a full five years to address those issues and will be able to make much more significant and substantive reform to the system.

Photo of Doug Beattie Doug Beattie UUP

I thank the Minister for her statement and update. She covered a range of issues. It gives us a really good direction, but I am always concerned that that direction could be undermined if outputs do not match what the Minister is trying to achieve. I have represented a military veteran who had to live in the Mourne mountains for three years because of the slowness of the family courts, and also a father who received a contact order two years ago but is yet to have contact with his children. Such outputs could undermine the very sensible approach that the Minister has taken. What are we doing to ensure that resident parents comply with court contact orders?

Photo of Naomi Long Naomi Long Alliance

As the Member will appreciate, those are matters for the judiciary. Ultimately, when somebody breaches a court contact order, it has to go back to the court to be enforced, and there will be a series of considerations that the judiciary will make at that point. It is fair to say that, by trying to engage in, for example, mediation rather than going directly to court, we might be able to foster better relationships between separating parents and might not get into the situations that we have all experienced in our constituency offices with respect to one parent frustrating another's access to their children and not being willing to cooperate with the court ruling. We also need to be very sensitive to the reasons why people may do that. It could be perceived threat, perceived intimidation, or a fear of what may happen to their children in those circumstances. That can be very real, even if the courts do not necessarily agree. A lot of work may need to be done to change people's minds and build confidence so that they comply with a court order.

Linda Dillon referred to those who bring forward vexatious claims against their former partner to use the court system against them. We have a duty under the new law to bring forward a report to the Committee and the Assembly on how we will handle the vexatious use of the family courts. We are very conscious of that issue. Early mediation will make a huge difference in terms of resolution. It will not solve all problems, but it will go a long way to addressing some of the issues to which the Member referred.

Photo of Paula Bradshaw Paula Bradshaw Alliance

Thank you, Minister, for your statement. I welcome it, including the reference to the private family law action plan. You mentioned that that is a collaborative approach with the Department of Health. Will you outline how the Department of Health will play a role?

Photo of Naomi Long Naomi Long Alliance

At least part of the feed-in to the action plan will come from social services and other health-based bodies. We are trying to move away from the current situation, in which court is the place of last resort, but often the first place to which people turn, to a situation in which, through mediation, case conferencing and early resolution, we can start to put the child's needs at the heart of the discussions between parents before they seek recourse in the courts and in a way that will empower parents to make collaborative and joint decisions about how they wish to take things forward.

The role of Health in that area is important, as Health covers most of the law when it comes to family courts. The law, in itself, is not something over which I have control; it lies mainly with the Department of Finance and the Department of Health. Although we are focusing in this mandate on early resolution, there is a very strong case to say that the elements of the law that relate to family courts should be centralised along with all the others. It creates complexity. People often write to me asking what I am going to do about family law. The truth is that I will refer their letter to another Minister, which is not a satisfactory response. People assume that it is part of the justice system; they do not recognise that it is spread over three Departments. It causes huge confusion in how people relate to it.

The Health Department has a huge responsibility not only for reporting to the courts in supporting the decisions that are made but for supporting early resolution through mediation and other means.

Photo of Paul Frew Paul Frew DUP 11:15 am, 23rd March 2021

I thank the Minister for her positive statement, and I hope that it will give hope to many who are going through the family courts.

Minister, your latter point is important. A man was going through court to gain access to his daughter, and the mother made what were proved to be false claims of child abuse that led to the man being removed from having access to and living with the two other younger children that he has with his current partner for nearly two years, leaving one parent to cope with two very young children. The child abuse claims were widened to the other parent, and that put in jeopardy the lives of the two young people living with that parent. They faced the real dilemma of being put into foster care or a care home. For nearly two years, those people were trapped in that nightmare. Social services were a barrier and a hindrance to that family, not a help. I know that that is not the Minister's position, but, if justice had been sped up, that would have helped to get through those barriers. Minister, can you provide hope to people through your statement that, along with the other Ministers you talked about, you will be able to fix this to a point where justice is sped up so that, if vexatious claims are made, they will be resolved more quickly, allowing people to get on with their lives. That man just made a claim for access for one child and was put into a nightmare scenario for many years.

Photo of Naomi Long Naomi Long Alliance

There are a number of issues in the Member's question that I want to raise. First, as he acknowledges, policy on alienation is a matter for the Department of Health. Where abusive and damaging behaviours are suspected in family proceedings, it is for social workers to advise the court, which will then consider evidence of alienating behaviour alongside all other evidence when deciding what is in the best interests of the child. Therefore, that provision already exists. Although we did not specify parental alienation as an issue in the Domestic Abuse and Civil Proceedings Act, we talked about abuse that involved and engaged children. That is because we recognise that it is a real concern. I believe that that can now be prosecuted under that legislation.

I also understand that the Department of Health has committed to exploring guidance for professionals supporting families and experiencing acrimonious disputes as part of that private law family action plan to which my colleague just referred. I want to continue to work collaboratively with Minister Swann to scope out and support future actions. The Department of Health has policy responsibility, but I am clear that one parent should not be able to use a child to abuse the other parent. It is appropriate, therefore, that we have captured that kind of behaviour in the domestic abuse Act.

Ultimately, while those matters are important, the Member is also correct that the speed with which justice is delivered is important, particularly where there is acrimony. Through more focus on mediation, we can take out some of the cases that perhaps do not need to go to court if a resolution can be found between parents and they feel confident that that resolution can be upheld. By doing that, we will take those out of the court and allow it to focus on the more complex cases where there is a need for intervention. That will allow the process to move more swiftly than is the case at the moment.

Photo of Liz Kimmins Liz Kimmins Sinn Féin

I thank the Minister for her statement. I, too, welcome the measure, as it is very positive. Anything that improves the speed and efficiency of family proceedings should be welcomed. It is important to recognise that, no matter what the situation is, the biggest impact is generally on the child or children in such scenarios.

Minister, there is a huge role for digital technologies in transforming civil and family justice, but many citizens, particularly those in rural areas, have difficulties in accessing and sometimes have no access to broadband. What safeguards will be in place to ensure that access to justice is not affected for those people as we go through the changes?

Photo of Naomi Long Naomi Long Alliance

That is a hugely important issue. Whilst we recognise that more and more people rely on digital technology to interact with government services, do online shopping and all those other things, there will always be a cohort who prefer to do things face to face. That is for a host of reasons, including the digital divide in society or, perhaps, because people have communication challenges or difficulties. It is important that we look at the individual and ensure that whatever method is used in resolving disputes — in the court, in mediation or digitally — we use the correct mechanism for that individual and that their access to justice is not in any way hampered by the technology that is used. Support for people with communication difficulties in the courts is hugely important for someone who struggles to understand the court proceedings or to make their points clearly. All of that needs to be considered. Digital technology is only one aspect of what we are trying to achieve.

For me, it is crucial that everyone has access to justice fairly and can participate as equally and fairly as possible in proceedings that have a huge implication for their personal life. We should not view the risk of exclusion from the courts as an issue: I see this as another mechanism by which people who perhaps struggle at the moment can access justice, as opposed to replacing the current system in which people can, if their situation makes it preferable, meet in person.

Photo of Gerry Kelly Gerry Kelly Sinn Féin

Gabhaim buíochas leis an Aire as a ráiteas. I thank the Minister for her statement. I welcome the statement and its intent. I have been listening carefully to her answers.

Given that children, as everyone agrees, are at the centre of and are most affected by court proceedings and decisions, to what extent have the Children's Commissioner and other organisations, such as the Children's Law Centre, been involved in developing the private family law action plan?

The Minister mentioned mediation a number of times. I agree with that process because it could speed all of this up and it is a better process to deal with. If, for instance, partners reach agreement through mediation, does that become law, or does it remain mediational until it goes to court?

Photo of Naomi Long Naomi Long Alliance

I will answer the final question first. We will have to look at whether that would be enforced by the court. It would be much better if that were not needed. Often, where people come to agreements, the agreements are not only more flexible but better enforced, simply because of the willingness of both parties and the fact that there tends to be less dispute. Tensions tend to arise at points of change: for example, if a person's individual circumstances change dramatically because they remarry, move home or whatever. By mediating early in such situations, we can probably resolve a lot of those issues.

Will the Member remind me of his first question? It has gone clean out of my head.

Photo of Gerry Kelly Gerry Kelly Sinn Féin

It was about the family law action plan.

Photo of Naomi Long Naomi Long Alliance

Yes, I recall. It was about third sector engagement, which is important.

I mentioned the Family Justice Board and the Civil Justice Council. It is important, for example, that we have businesses, litigants in person and so on represented on the Civil Justice Council. That would be a step forward. Equally, when it comes to the needs of children, having representatives of the children's sector and the third sector involved on those boards may help with the representation of children's needs and concerns.

It is important that we try to make the justice system more inclusive and more representative, particularly in civil and family justice. That is the part of the justice system that the vast majority of people who have interaction with justice will interact with. It tends to be the bit that people know best and, yet, are most fearful of. As we shape the justice system and plan for the future, it is important that ordinary citizens and the groups that represent their best interests are represented. If we are to keep children at the centre, engaging those organisations, particularly when looking at how we go about introducing some of the plans that we have, will be critical.

Photo of Philip McGuigan Philip McGuigan Sinn Féin

I thank the Minister for her statement and the issues and actions that it contains. Will the Minister give an update on the British Government's application to rejoin the Lugano convention, which we lost access to as a result of Brexit? Would she have any concerns, should that application not be successful?

Photo of Naomi Long Naomi Long Alliance

I do not have an update for the Member at the moment. Rejoining should be straightforward, as, indeed, should be the ability to get a data adequacy agreement. Doing so is important for the cross-jurisdictional resolution of family and civil disputes so that people cannot simply walk across the border, resulting in no opportunity to be able to deal with the issues. As we know, that has been a long-standing issue. The Member's colleague in the Department for Communities will know about the pain that people go through when the Child Support Agency (CSA), for example, makes a ruling about how much maintenance they should be getting, only for the person who is meant to be paying the maintenance simply to walk across the border, which makes the CSA struggle to enforce its judgement. That is something that needs to be looked at very carefully, and we are keeping a watching brief on it.

Photo of John Blair John Blair Alliance

I am pleased to hear the emphasis on fairness in the Minister's statement, particularly the references to vulnerable service users. Can she tell us more about how her actions and proposals will advance fairness in the system, through either the work of the Department of Justice or departmental work with other agencies?

Photo of Naomi Long Naomi Long Alliance

One of the areas in which we are looking at fairness in the system is through the work that we are doing at the moment to review the financial jurisdiction of the various court tiers. That is hugely important, because there are many people who will suffer financial loss. The last time that our financial jurisdiction was increased was around 10 years ago, if not more. The value of what would be considered a small claim now — if you lose a holiday or something like that — could be considerably more than the current financial jurisdiction of the courts. The purpose of the system is to ensure that, in those circumstances, people are able to get a quick, effective and fair resolution of a dispute with another party. Its purpose is also to do that without there being the need for people to turn up with a large legal defence — barristers and all the rest — and for it to be a much more informal resolution process, and therefore much quicker. We are looking very carefully at how we will raise the level of the financial threshold. It is about balancing the need for our system to remain quick, because it is much faster than the system in England and Wales, against ensuring that there is not an inequality of arms, where people feel that the need to defend a claim justifies huge expenditure on barristers and a legal team, while people who takes the claim arrive on their own to represent their own interests and feel that they are not able to do so adequately in front of the court. That is a fundamental issue of fairness that we are working to address.

Photo of Jemma Dolan Jemma Dolan Sinn Féin

I thank the Minister for her statement. Will she give us an update on the commencement of the civil legal aid provisions of the Domestic Abuse and Civil Proceedings Act 2021 and an update on the work that has been done, as was promised during the deliberations on the Bill, to look at having better access to legal aid for domestic abuse victims and limiting perpetrators' access to legal aid?

Photo of Naomi Long Naomi Long Alliance

The Member will be aware, at the time of the Bill, that I gave a commitment that we would move forward on the issue of legal aid, and we continue to make progress in that regard. As you know, we took legal advice on repercussiveness. We are now working through the consequences of that. We are looking at how we can best implement the wish of the Assembly, which was that those people who go to court because they are called to court will have access to legal aid but that it will not be available to those who initiate court proceedings, unless they have a material entitlement based on income. That is the balance that we are working on at the moment. We hope to be able to bring forward that advice in the coming weeks.

Photo of Rachel Woods Rachel Woods Green

I thank the Minister for her statement. I welcome all attempts to demystify the courts, no matter at what level. Across society, we need to learn about them, and know about them, especially for children and young people who are involved in the civil and family courts. I hope that resources and information will be made available for children and young people to access. The Minister said that delay is a key factor of interest in the family courts and has answered a few questions on budgeting and resourcing already. Has she, however, had agreement from her Executive colleagues, or does she intend to put in a bid to fund and deliver the necessary changes? On what specific mediation proposals will the Department be consulting?

Photo of Naomi Long Naomi Long Alliance 11:30 am, 23rd March 2021

The Department of Health has agreed to continue to fund mediation through the action plan that we have set out. We have, of course, put in bids for all aspects of the work in the Department of Justice and, where we have that funding secured, the plan has been cut to fit that cloth. We recognise that we have limited time and resource to make significant impacts.

Of course, if it should happen that more money is made available, there is a long list of issues that we could address in the Department. However, we also need to be realistic as to what we will get from the Department of Finance, given the competing pressures. I am in no doubt whatsoever that, for example, where the Department of Health is working with us on some of these issues, particularly early resolution, it is making a financial as well as a practical contribution to the objectives set out in the report.

Photo of Alex Maskey Alex Maskey Sinn Féin

That concludes questions on the statement. Members may take their ease for a moment or two.

Photo of Jonathan Buckley Jonathan Buckley DUP

On a point of order, Mr Speaker. Whilst not questioning the ruling of the Speaker, earlier you mentioned that the heckling of Ms Bradshaw was part of your deliberations in the sanctions towards Mr Allister. I ask for clarity on this point, for the sake of —.

Photo of Alex Maskey Alex Maskey Sinn Féin

Mr Buckley, you actually are challenging the ruling of the Speaker, so I do not want to discuss that any further.

Photo of Jonathan Buckley Jonathan Buckley DUP

On a further point of order, Mr Speaker.

Photo of Alex Maskey Alex Maskey Sinn Féin

You have already challenged the Speaker. You may not understand that; you are relatively inexperienced. However, I made deliberations and announced them this morning. I do not intend to rehearse them, so I leave the matter at rest. Thank you.