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14th View from the President’s Chambers: Care cases: Settlement conferences and the ‘tandem’ model

Date:15 AUG 2016
Third slide
Formerly President of the Family Division
The number of new care cases continues to rise, seemingly relentlessly. Cafcass figures show that in the 12 months to March 2016 there were 12,781 new cases, an increase from 11,159 in the previous year (an increase of 14%). In the 4 months from April to July this year there were 4,959 new cases compared to 4,118 in the corresponding period in 2015 (an increase of 20%). The reasons for the increase are little understood and are currently being investigated. We must however plan on the basis that there will continue to be significant increases.

That is one reality. The other reality is that we are unlikely to see any increase in resources, judicial or otherwise.

Given the realities, we must continue to look for new, innovative and better ways of handling these cases, while never departing from the fundamentals, namely that:
  • Care cases, with their potential for life-long separation between children and their parents, are of unique gravity and importance.
  • It is for the local authority to establish its case.
  • Common-law principles of fairness and justice demand, as do Arts 6 and 8 of the Convention, a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers.
I make quite clear: I will not countenance any departure from the fundamentally important principles which I sought to explain in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035 and in Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1.

I propose in a future ‘View’ to deal with other ways in which we can and must improve how we deal with public law cases, for example, by continuing to expand the concept of the ‘problem solving court’ through extended use of such techniques as FDAC and PAUSE, and by reaping in the family court all the benefits of the digital online court which is key to the success of the entire court modernisation programme.

Here, I want to concentrate on two important initiatives.

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Settlement conferences

Settlement conferences were pioneered in Canada, where all the indications are that they have been a success. They are, in principle, something that I support, which is why I encouraged HHJ de Haas to start a trial in Liverpool and supported the idea of a wider pilot in a number of other courts (see further HHJ de Haas’s update on the pilot at May [2016] Fam Law 621). I attach, as Annexes 1, 2 and 3, documents, issued with my support and encouragement, which set out both the basis upon which the pilot is proceeding and how it is being evaluated.

I am aware that the pilot has met with a mixed response. On 1 July 2016, the Association of Lawyers for Children issued Guidance for its members, revised on 7 July 2016, which is attached as Annexe 4.

I feel it would be helpful to clarify a number of misconceptions.

First, I must stress that the pilots have my full support and that the judges taking part are volunteers. It is, therefore, a judicially-led initiative, as it was in Canada when the approach was first introduced over 15 years ago. Settlement conferences in public law cases are now an established part of the Canadian legal system. The Canadian model is being tested in the pilots to see if it can be adapted to our system.

Secondly, it is also important to stress that the paramountcy principle and the tandem model of representation of children apply just as much to settlement conferences in the pilot as to any other part of the public law system. It is an entirely voluntary and consensual process conducted in the presence of the parties’ lawyers with ample opportunity for advice to be given outside the process and for careful reflection by all parties before decisions are made.

During the course of the settlement conference the judge will hear from all parties on a without prejudice, confidential and legally privileged basis. If a settlement conference does not succeed in reaching agreement and there is a subsequent trial nothing disclosed at the settlement conference may be used at the trial which, moreover, will not be heard by the judge who conducted the settlement conference. Where a child is a party the child’s solicitor and/or guardian will ensure that the child’s wishes and feelings are made known.

The ethos of the settlement conference is not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground. Judges do not, and in my view must not, address parties in the absence of their legal representatives. A question may arise as to whether a judge should see one party, together with their legal representatives, on their own and without the other parties or their representatives being present. In my view very great caution is needed. Only in exceptional circumstances would this be appropriate, and then only if all parties expressly agree to the judge proceeding in this way.

Thirdly, it is important to remember that the settlement conference approach is being piloted. I acknowledge, as I have said, that views on the merits of this approach are currently divided. The pilot is a genuine attempt to test whether the model can work as well in our system as it does in Canada.

The pilots will be evaluated through the collection of quantitative data and the conduct of qualitative research by specialist social researchers from MoJ Analytical Services. The findings will be shared with an advisory group following a similar approach to that taken during the pilot of the revised Public Law Outline in 2013/2014. This will enable lessons to be learned, challenges identified and areas of good practice shared so that the model can be refined and improved.

When the pilots come to be evaluated I will be looking closely to see whether the settlement conference approach compromises, in any way, the fundamental principles of our public law system such as the right to legal representation, Art 6 and 8 rights, the paramountcy principle and the importance of ensuring that the voice of the child is heard. I, and other members of the judiciary, will sit on the Advisory Group.

The ‘tandem’ model

The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased. I would therefore be strongly opposed to any watering down of this vital component of care proceedings.

This does not mean, however, that the practical operation of the tandem model should be immune from scrutiny. The tandem model requires that in every care case the child is represented by both a guardian and a solicitor. In some cases, the solicitor will instruct counsel, sometimes, in the very heaviest cases, two counsel, a junior and a QC. This, I emphasise, is as it should be. But we need to remember that all this costs money. I repeat in this context what I said in Re L (Procedure: Bundles: Translation) [2015] EWFC 15, [2015] 1 FLR 1417, para [38]:

‘I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not.’

The MoJ, with my support, is investigating whether there is scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice. From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team. But, I emphasise: so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model.

With my support, the MoJ will accordingly be conducting a data-collecting exercise in 12 courts. A second phase, also involving the judiciary, will explore how a reformed model of representation could work in practice.