Posted: 2nd September 2016
Author: Emily Bower


holding hands

Sir James Mumby, President of the Family Division has shared his latest views in relation to the continued increase in the number of care cases and how the Family Courts will manage this without any increase in resources (judicial or otherwise).

He states that: “we must continue to look for new, innovative and better ways of handling these cases, while never departing from the fundamentals, namely that:

  • Care cases, with their potential for life‐long separation between children and their parents, are of unique gravity and importance;
  • It is for the local authority to establish its case;
  • Common‐law principles of fairness and justice demand, as do Articles 6 and 8 of the Convention, a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers”.

The article concentrates on two important initiatives:-

  • Settlement Conferences – this is a Canadian practice which is currently being piloted in Liverpool over the next few months.

The idea of a settlement conference is to try and reach an agreement in a voluntary and consensual process conducted in the presence of the parties’ lawyers. The parties will be encouraged to speak directly with the Judge.

Judges hearing a settlement conference will receive specific training to do so and it will be a different Judge to that of the trial Judge. The conference will be without prejudice (anything said by the judge or the parties is confidential and privileged).

If an agreement is reached, a consent order will be drafted reflecting the decisions made and a final hearing will not be necessary.

If an agreement is not reached, the matter will be listed for a final hearing.

The settlement conference is “not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground”. However, unless the conference is designed to draw concessions from the parents by the Judge seeking to directly persuade the parties to agree, it is difficult to see at this stage how this could be any more effective than a properly held Issues Resolution Hearing!?

The MoJ will be analysing the data of the pilot schemes to see if this is something which will work in our court systems as well as it does in Canada.

  • The Tandum Model

At present, the MOJ is investigating whether there is scope for a reformed level of representation for children in public law cases and how this would work in practice.

From the president’s perspective, he says that “the focus of this [the investigation] is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team”.

This is obviously of great interest to those practitioners who currently represent children via their children’s guardians.

To see the full article please click on the link below.

The president is proposing to address in a future ‘View’ other improvements that can be made within public law cases, by, for example, the use of the digital online court and the ‘problem solving court’- FDAC and PAUSE.

Emily Bower