Editorial

In this issue, we hope the research articles will be able to contribute to a number of current debates, beginning with the discussion of the role of public inquiries as the Covid Inquiry starts work, and followed by the need to monitor the impact of legal intervention where there may be questions of domestic abuse after parental separation. Finally, we hope to demonstrate the importance of our new sections, with their emphasis on bringing together Family Law, Social Welfare and Administrative Law, as described by our new Administrative Justice section editor Lee Marsons and exemplified by Jed Meers, section editor for the Debates in Welfare section with colleagues through their discussion of vicarious liability. We end with wide ranging casenotes, which support our newly strengthened focus on welfare and family law, looking at dealing with Section 48 Orders in the Court of Protection, Surrogacy and Parenting Orders, and advance payments of Universal Credit.

First, we are most grateful to Emma Ireton for her article exploring why it is so difficult to hold and benefit from a public inquiry. The COVID-19 Inquiry (response and impact) into the preparation and response to the pandemic set up on 28 June 2023 under the chairmanship of Baroness Hallett has a wide and detailed brief and a lengthy timetable. It is using remarkable procedures in collecting evidence, including ‘Every Story Matters’ inviting anyone who wishes to tell their story online to do so in the form of answers on a list of topics. The article which opens this issue provides an informed and clear account of what the author calls ‘Public inquiries: irreconcilable interests and the importance of managing expectations’. Ireton argues that even where the public inquiry process is well understood nevertheless in practice conflicting interests and expectations arise because of the different capacities in which people engage with a public inquiry which are difficult or impossible to resolve. She argues the need for clearer articulation of the role and function of a public inquiry and calls for further research on how to better address the needs and interests of participants within the constraints of the public inquiry process. Now that legal powers have been granted and formal roles created for certain inquiry participants, and the process is clearly inquisitorial without power to determine liability, the resulting flexibility without uniformity can increase the confusion. As a former panel member of the Bristol Royal Infirmary Inquiry, I would like to endorse her analysis, and appreciate her findings in this under researched field.

The issue continues with two articles on domestic abuse, the first from Kayleigh Richardson and Ana Speed which argues for the repeal of Regulation 12 in the Civil Legal Aid (Financial Resources and Payment for Services)Regulations 2013 that the Director of the Legal Aid Agency is to disapply the threshold the victim must satisfy to secure legal aid in applications for a protective order. According to the authors findings from their small survey of professionals examined together with information from the Legal Aid Agency, there are indications that ten years after implementation, understanding of the Regulation remains limited, and there are concerns among practitioners about not being remunerated for work completed on files where the criteria are not disapplied. This is an unfortunate situation where it can only be hoped that the ongoing Legal Aid Means Test Review will make recommendations, and be heard.

Our second domestic abuse article is by Michele Burman and colleagues in Scotland. This piece makes a strong contribution to the work on the outcomes of domestic abuse by going beyond the process of decision making for child arrangements. It looks at the impact of the absence of systematic ways to gather and make available information about domestic abuse where it has occurred or is still occurring in cases involving child contact. Despite the early establishment of specialist domestic abuse courts in Scotland and the making of a statutory offence of domestic abuse in 2019, relatively minor changes to the law appear to be urgently needed. These two articles make a strong case for the value of research evidence, the first in identifying an issue requiring no more than a need for clarification of a regulation, and in the second the need for research into the longer term impact of legislation in order to be confident that the decisions reached about contact are able to ensure the child’s safety.

The issue then moves to the Administrative Justice section of the Journal, which will appear twice a year, alternating with the Welfare Debates.

Lee Marsons sets out the aims for the new Administrative Justice Section, which will of course continue to support work on Ombudsmen and Tribunals. He will aim to explore and support stronger links between the overarching constitutional structure and foundational principles and day to day gritty administrative questions, to develop applied administrative justice scholarship, and work with communities dependent on public bodies particularly mental health, and to encourage diverse submissions to JSWFL. Jed Meers and colleagues follows with their discussion of Vicarious Administrative Fairness. They describe how thought on administrative fairness has traditionally focussed on the relationship between public decision makers and the person or groups formally subject to the decision making process. But they point out that people who are not the direct subjects of the process but able to access the experience of others can also experience the consequences of procedural unfairness, and there is a need to question the default individualistic unit of analysis which underpins conventional thinking. The authors report their study of the Homes for Ukraine Scheme, which left sponsors interacting with local and central government in a variety of ways, lacking as often happens with sponsorship schemes vetting, training or sharing of the financial burden and ongoing costs.

We close with three cases covering both welfare and family matters, looking at the work of the Court of Protection, Surrogacy and Parenting orders, and Universal credit advance payment procedures.

Overall, the combination of pieces within this issue provide an excellent example of the complexity of the Journal’s scope and expertise!

End note

Meanwhile, further to our last editorial, where we reflected in more detail on the Ministry of Justice’s consultation on making mediation mandatory in family matters, we await its outcome, as well as the review of legal aid, the questions about transparency in the courts and more…. and we watch with interest developments elsewhere, particularly Australia, where a major revision of the Family Law Act is reaching the final stages of its progress through parliament.

It is expected that Australia will modify requirements to mediate given the continuing concerns about the failure to develop effective screening for domestic abuse. It is also likely that the presumption of shared parenting time will be repealed. When asked what arguments had persuaded government to indicate their willingness to change, the answer was clear and simple… Australia has a new government which after 17 years very much wants to ‘clean up’ the statute book, and welcomes an extensive legislative programme.