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Settlement conferencing in child protection proceedings as practiced in Halifax, Nova Scotia, Canada

Date:1 DEC 2016
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Journals Manager + Online Editor

On 1 December 2016 the Family Justice Council held its 10th Annual Debate, ‘Settlement conferences: are they Article 8 compliant?’ in London.

The December issue of Family Law features an article on settlement conferencing by Shelley Hounsell-Gray, the managing lawyer in the organisation in Nova Scotia, Canada which directly employs lawyers who act for parents in child protection proceedings. Shelley also acts for parents in such proceedings. 

The Honourable Justice R James Williams spearheaded the introduction and evolution of the settlement conference process in child protection proceedings at the Supreme Court (Family Division) in Halifax. This court has 12 specialised family law judges and serves the largest city in Nova Scotia, with a population of about 400,000. 

Shelley begins with a brief explanation of a child protection proceeding before the court and the settlement conference process as it is practised at the Supreme Court (Family Division) in Halifax. She identifies occasions when the settlement conference process is used and the general procedure for the process. She explains why parents’ lawyers seek out the process on a regular basis and how the child’s voice is received. She then suggests training which might assist lawyers and judges. Finally, she concludes with a brief discussion of how the settlement conference process can improve ‘access to justice’ for parents and children. The article includes:

• A few examples of issues discussed at a settlement conference
• The settlement conference

– Scheduling and pre-conference action items
– Process and expectations during the settlement conference
– The conclusion of the settlement conference

• Why do parents’ lawyers utilise the settlement conference process on a regular basis?
• The child’s voice
• Training for lawyers and competency
• Judicial training and competency
• The influence of settlement conferencing on ‘access to justice’

Shelley Hounsell-Gray insists that competent, well trained, judges are key to ensure the settlement conference process is just and its outcomes consistent with the law, the interests of the child and his or her family: 

‘Unassertive, poorly trained and ill-informed judges can have a negative impact on the settlement conference process and ultimately the outcome of the proceeding. This can lead to devastating results that are inconsistent with the best interests of the child. However, this concern may be addressed with the implementation of training, standards and selection of those who are competent and favourably disposed to lead a child protection settlement conference.’

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She writes that opportunities to participate in judicially led settlement conferencing can ensure the parents’ and child’s substantive and procedural rights are maintained throughout the child protection proceeding. Settlement conference judges are judges; they must uphold the law and, where appropriate, international treaties such as the United National Convention on the Rights of the Children and the European Convention on Human Rights during the settlement conference and when endorsing any agreement reached between the parties. 

She concludes that a settlement conference can lend opportunities for parties, especially parents, to engage in meaningful dialogue with a judge in a proceeding where there is concern about speaking within the adversarial process. Astute judges will ‘level’ the playing field for all of the parties, focus on core issues and concerns and attempt to guide outcomes in the best interests of the child:

‘My colleagues and I fully support the opportunity to participate in a settlement conference for child protection proceedings. Simply put, it is a ‘no risk’ venture. For a lawyer it is an opportunity to receive judicial input on the strengths and weaknesses of your client’s case, and to hear the wisdom of an experienced judge. For the parents this is an incredibly serious court proceeding; a court sanctioned disruption to the relationship between parent and child. For parents, this process is an opportunity to actively participate in a discussion where each party is able to express themselves on the points they believe to be of importance. 

Participation in a settlement conference may lead to a negotiated resolution that may see a child returned home sooner, or increase the potential success with an amended case plan. There are times where there is no hope, a settlement conference is an opportunity to keep families in contact through a negotiated placement, or contact options post permanent care. For those cases where there is no hope, the settlement conference may avoid, in a respectful manner, a gruelling and devastating trial. However, it must remain that the settlement conference is voluntary; it is an option that complements the traditional litigation model. If a party should proceed to trial, even when there appears to be no hope, that option must remain available and uncompromised as result of participation in the settlement conference.’ 

‘Settlement conferencing in child protection proceedings as practiced in Halifax, Nova Scotia, Canada’ is available at [2016] Fam Law 1419.

A full report of the FJC debate will be published in the January 2017 issue of Family Law together with a full account of, and articles based on, the FJC Interdisciplinary Conference held in Birmingham in October 2016, ‘Brave new world? Litigants in person and the family court’.