I mentioned here last Friday the launching by the President of the Family Division Sir Andrew McFarlane of a public and private law consultation regarding children cases in the Family Court. The consultation will consider the interim proposals for reform contained in reports by two Working Groups, a Public Law Working Group chaired by Mr Justice Keehan, and a Private Law Working Group chaired by Mr Justice Cobb. Here I give a few brief thoughts upon the recommendations of the latter.
First I need to explain for the benefit of the non-lawyer exactly what the Private Law Working Group report was about. It was actually a review of the workings of the Child Arrangements Programme (‘CAP’), which regulates the conduct of private law children proceedings. The CAP was introduced in April 2014 to coincide with the creation of the single Family Court, replacing its predecessor, the ‘Private Law Programme’. You can find it here.
The consensus of the Private Law Working Group is that the underlying principles of the CAP remain “essentially sound”, but the Group make a number of recommendations for reform, which are collected together in a summary in Annex 3 to the report. I could not possibly set out all of the recommendations here. Instead, I will pick out some of the more interesting ones.
The first, general, recommendation reads:
“Consideration should be given to ensuring that the most effective range of out-of-court family resolution services are available to support those experiencing family breakdown in England and Wales, drawing on the wealth of existing research and experience in this area, both domestically and internationally. A national non-court dispute resolution (‘Family Solutions’) service should be actively considered. This is particularly pressing given the volume of cases currently passing through the courts.”
This is not a new idea, although to be honest, I am not entirely certain what a ‘Family Solutions’ service looks like. The Working Group acknowledge that it “will take time to create, financial investment, and Government support”, although they believe that the long-term financial benefits of a significantly non-court based regime would soon offset initial investment.
In a similar vein the Working Group recommend that “Local Family Justice Boards should take responsibility for forming local alliances of services (or developing existing alliances) to provide integrated support for all families experiencing separation”, and that “the alliances of services should be given the working title for present purposes of the ‘Supporting Separating Families Alliance’”. We are told that:
“The rationale for creating a network of alliances (or indeed a national alliance) is threefold:
First, evidence suggests there is a high level of unmet need, because existing free or affordable resources and services to tackle family conflict are both embryonic and fragmented; provision of support for families is patchy;
Second, the result of (a) is that an increasing number of families are turning to the courts, which are not always the best places to address the underlying problems, and which potentially further escalates conflict and its impact on children; and
Third, we need to improve mechanisms for translating and integrating learning about effective approaches into variable local delivery systems.”
Such an alliance would, amongst other things, “provide early information and help to families experiencing conflict so that they better understand the impact on children, strengthen their co-parenting skills, and facilitate access to therapeutic services for children who may be experiencing trauma”. Sounds good to me.
Moving on, the Working Group recommend that Mediation Information and Assessment Meetings (‘MIAMs’) should be ‘revitalised’. MIAMs (which should be attended by anyone wishing to make an application in, or to initiate, family proceedings) had been introduced with the aim of steering more cases into mediation. The Working Group acknowledge that they have not been effective in this, and make a number of recommendations, including that the ‘invitation’/direction to applicants to attend a MIAM should contain a more encouraging, positive and child-focused message underlining the benefits of non-court dispute resolution to parents and their children, and that Judges and court staff should be more prepared to enforce the requirement to attend a MIAM. Seems sensible.
Moving on again, the Working Group recommend that private law applications should be placed on ‘tracks’, with the objective of moving cases through the court system more effectively. They propose that there be three tracks: Track 1 for the simpler cases without safeguarding issues; Track 2 for the more complex cases (often with safeguarding issues); and Track 3 for ‘returner’ cases. Again, this idea, which I think I have come across previously, seems eminently sensible, ensuring that cases are given resources appropriate to their facts.
The last set of recommendations I want to mention deal with the thorny issue of ‘returner cases’ and enforcement, so often a cause of complaint by parents using the family courts. The Working Group make several recommendations, including that where possible such applications be placed back in front of the same judge/magistrate/legal adviser who heard the previous case as soon as possible, and ideally within 10 to 15 days. That timescale sounds pretty ambitious to me, but if it could be met it might go some way towards satisfying litigants that the system is doing all it can to ensure that orders are complied with.
You can find the Private Law Working Group review of the CAP here. If you wish to respond to the consultation you may do so by emailing the President’s Private Office at [email protected], with the subject header of “PRIVATE LAW: Consultation Response”. The consultation will close on the 30th of September.