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Munby backs ‘innovative’ settlement processes for care cases

Family lawyers are broadly supportive of the principle but remain concerned

19 August 2016

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Sir James Munby has given his initial backing to alternative ways of handling care proceedings that could see more cases resolved at an early stage with the consent of the parties in the course of a without prejudice hearing before a judge.

The number of care cases continued to increase 'seemingly relentlessly' last year, rising 14 per cent in the 12 months to March, and by 20 per cent between April and July, the president of the family division pointed out. He also warned that financial pressure on the justice system was not likely to decline.

'Given the realities,' he said in his latest View, 'we must continue to look for new, innovative, and better ways of handling these cases, while never departing from our fundamentals.'

Munby P also called on other judges to consider the benefits of this approach, in particular by continuing to expand the concept of 'the problem-solving court', 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'.

Of particular interest, he said was a process developed in Canadian courts, settlement conferences, which were being piloted in the UK. Earlier this summer the Association of Lawyers for Children (ALC) expressed concern that this process would reduce the involvement of solicitors and therefore the level of protection afforded to children.

Munby sought to provide some reassurance that the settlement approach would not affect fundamental principles, such as the paramountcy principle and the importance of ensuring that the voice of the child is heard.

'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,' he said.

He added that the pilot was 'a genuine attempt' to test whether the model could be developed in the English public family law system.

In its guidance to members last month, the ALC posited that the scheme was 'clearly advanced by the MoJ in order to save court time and money' and that it was in breach of articles 6 and 8 of the European Convention on Human Rights for both children and parents.

Family lawyers have been broadly supportive of the principle but remain concerned. 'The concept of settlement is to short-circuit an essentially adversarial court process, so if this can assist in minimising the impact of the court process, then there could be some positive effects," said Julia Thackray, former head of the family team at Penningtons and programme leader at Central Law Training.

'But some of the issues raised by the ALC must be properly addressed so that the process remains fair for both children and parents.'

Barrister Lucy Reed agrees the approach could be beneficial but highlights a number of unresolved concerns. 'If a way forward can be found that avoids the emotional and financial costs associated with a contested final hearing then it will be beneficial,' she said.

'The question is whether the risks of this untested approach outweigh the potential benefits. This is no doubt why the scheme is being piloted, but it is unfortunate that the pilot appears to have been launched with little or no consultation of bodies such as the ALC or FLBA, some of whom have subsequently expressed concern that the president's 14th View has set out to allay.'

But the St John's Chambers barrister was more concerned by what could be read as a possible reconsideration of the tandem model. 'While the president restates his support for the tandem model and says he will not brook its erosion, he then goes on to moot the complete absence of either the guardian or child's solicitor from certain - unspecified - hearings.

'I hold real concerns about this as the thin end of the wedge and a significant diminution in the protection afforded to the children in care proceedings - it reduces a directions hearing to an adversarial dialogue between parents and local authority which has potential to be unhelpful to the judge in focusing on case management with a clear focus on the issues for the child.'

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Children Courts & Judiciary