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Lawyers overwhelmingly hostile to settlement conferences in care proceedings

‘Get ready for team-building days out with local authority managers’, says barrister

2 December 2016

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Family lawyers have turned overwhelmingly hostile to settlement conferences in public law cases but are equally largely in favour of the process in private law children cases.

Settlement conferences are being piloted in Liverpool as an alternative to court proceedings in children cases. Entered into on a voluntary basis by all concerned they aim to offer a less conflictual, judge-led process for the resolution of both public and private law children cases. The parties remain represented at all times and can also opt out at any moment if they wish.

The scheme, however, has raised concerns, and nearly all delegates at last night’s Family Justice Council annual debate voted against the pilot in public law cases. On the other hand, settlement conferences in private law cases received near unanimous support, with nearly all in favour.

The president of the family division, Mr Justice Munby, has been mostly supportive but has also warned that the process should ensure that the paramountcy principle should be respected and that the voice of the child be heard.

In a pragmatic comment about the challenges facing the family justice system, the president said in his 14th View in August that ‘given the realities, we must continue to look for new, innovative, and better ways of handling these cases, while never departing from our fundamentals.’

Leading the case against, Elizabeth Isaacs QC, said parents involved in the process could be pressured into agreeing to outcomes that were unsuitable. The family court was an environment where the rhetoric of power and authority was so great that it was ‘simplistic and disingenuous’ to think otherwise, she said.

Citing recent research on judicial prejudice, Isaacs also warned that judges do not operate in a vacuum and that there was a risk of unconscious bias, with a real danger that the system could ‘go unchecked’. Further, she said, judges getting involved in local authority decisions in the way being proposed for settlement conferences blurred the boundaries between judicial and executive powers. This, she said, would be a threat to judicial independence.

The argument resonated with Martha Cover. The head of Coram Chambers and co-chair of the Association of Lawyers for Children told family lawyers to ‘get ready for team building days-out with local authority managers and judges’.

‘There is a tendency within government to see the judiciary as partners,’ she warned. ‘We need to be careful. Judges hold local authorities to account, they are independent from local authorities.’

Earlier, family judge Margaret de Haas QC, who is piloting the scheme in Liverpool, urged lawyers to consider the benefits of the scheme, especially in the way it empowered parties to reach a decision that solved a problem rather than just being imposed by the judge.

‘It’s a natural evolution of a process that reflects a wider problem-solving approach. The judge comes off the bench in a process where the parties can talk to the judge at their level; communication is not at a distance but there is engagement in an appropriate way,’ she said.

Settlement conference supporters pointed to the Family Drug and Alcohol Courts as an example of successful problem-solving courts. Set up in 2008, the FDAC helps parents struggling with addiction overcome their problems. The judge behind the FDAC, District Judge Nicholas Crichton, now retired, said the extension of the scheme last year showed that the problem-solving approach was ‘beginning to catch on’.

Yesterday, however, Crichton said the two weren’t comparable. While he was ‘totally against adversariality in family proceedings’ he said the work of the FDAC was focused on resolving the very problem that brought parents to court in the first place as part of a longer process with the family. That wasn’t the set-up for settlement conferences.

But in the context of court closures and budget cuts, the greatest suspicion was that the project was driven by costs saving rather than by the need to deliver fairer justice.

Only a handful of the 90 or so audience had attended a settlement conference, including child psychiatrist Michael Shaw. Shaw later suggested that for a judge to agree to an outcome with a parent in care proceedings was akin to doctors agreeing a treatment with a patient without being satisfied that the treatment was appropriate to the condition.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg

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