The President of the High Court’s family division has voiced the need for “innovative” approaches that could allow more care cases to be settled without the need for full hearings.
Sir James Munby said the courts had to consider new ways of handling the cases, given demand was rising “relentlessly” and any increase in resources was unlikely. The number of care applications made in the first four months of 2016-17 was 20% higher than the same period last year. The average time for completing cases is 28 weeks, latest figures show.
He lent his support “in principle” for settlement conferences, a model which originated in Canada and is being piloted by family courts in six areas in England and Wales.
The conferences allow for cases to be resolved at an early stage if all parties can reach an agreement in the course of a “without prejudice” and legally privileged hearing before a judge. Judges can address the parties directly in informal discussions, rather than through their legal representatives.
If no settlement is reached the cases proceed to a final hearing, but these are heard by a different judge and nothing disclosed at the settlement conference can be used.
“The ethos of the settlement process is not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground,” Munby said in his latest ‘View’ briefing.
Last month the Association of Lawyers for Children (ALC) voiced a series of concerns over the settlement conference model. It raised fears that the process could breach both the children’s and parents’ rights to a fair hearing, and questioned the motives behind the pilots.
“The scheme is clearly advanced by the MoJ in order to save court time and money. It is to be evaluated on the basis of court time saved by avoiding contested hearing. It is not focused on the quality of the decisions made, nor on the centrality of the child’s welfare, including the benefit to the child and the parents of having had a fair hearing,” guidance issued by ALC said.
The cross examination of evidence offered by trials was also crucial, the lawyers’ added.
“Expert opinion and social work evidence are often shown to be weak and the professional views of the family too negative. Parents’ explanations of events, which have been previously dismissed by professionals, may be found by the judge to be credible.
“The trial process must be preserved in order to ensure that the evidence against the parents is properly tested, and that the best possible decisions is arrived at for the child.”
Munby acknowledged that opinion on the settlement conferences approach was currently divided but said the pilot was a genuine attempt to see whether the model could “work as well in our system as it does in Canada”.
“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, Article 6 and 8 rights, the paramountcy principle and the importance of ensuring that the voice of the child is heard,” he added.
Settlement conferences are being piloted between June 2016 and October 2016 at family courts in Cheshire, Merseyside, Devon, London, South East Wales and Avon, Somerset and Gloucestershire. The pilot will be evaluated by the Ministry of Justice.