A review of the Child Arrangements Programme PD 12B

Report to the President of the Family Division by the Private Law Working Group

Resolution’s response             

Resolution’s 6,500 members are family lawyers, mediators and other family justice professionals, committed to a non-adversarial approach to family law and the resolution of family disputes.

Resolution members abide by a Code of Practice which emphasises a constructive and collaborative approach to family problems and encourages solutions that take into account the needs of the whole family, particularly the best interests of any children.

We also campaign for better laws and better support and facilities for families and children undergoing family change.

This response has been prepared by members of Resolution’s Children, Dispute Resolution, Domestic Abuse, Legal Aid, Parenting after Parting and Young Resolution National Committees.    Many of our members are already actively involved in non-court based dispute resolution methods, including mediation, collaborative practice and arbitration, and much of our training for members is focused on these areas.

Responses to consultation questions

SSFA

Do you support the formation of an alliance of services (the ‘Supporting Separating Family Alliance’)?

1. Yes, in principle Resolution supports this idea.
2. We believe that many people cannot currently find information on and a pathway to out of court services together with the additional face to face and professional support they may need, or to assist them with post litigation life.
3. An alliance would clearly need to work for users, and how you would deal with referrals to and between local alliances would need consideration and support.
4. We suggest that a sensible starting point might be to use Help and support for separated families (HSSF) services in a local community, creating a link between those services and the proposed Supporting Separating Families Alliance (SSFA) to avoid reinventing the wheel and duplication or misunderstanding. Some preliminary work to map the availability and type of local services across England and Wales would be really useful, for example looking at how many and what HSSF Mark holders there are in each area to make it easier to identify the viability of an alliance of services at an early stage. Who would do that mapping work and how would need further consideration.
5. Perhaps there should also be some work done to look at how access to existing online services supporting separating families and relevant gov.uk offering/s might be effectively utilised by an alliance and joined up for the separating adults currently facing a broad spectrum of online information. Many people will look to initial help online, including to find a local service, and might not expect to be directed to such at all. In some areas, people are reluctant to go to local services that they may perceive as either likely to be populated by people they know, or which they might view as stigmatising.
6. We note recommendation 7 that the agencies and partners identified in Annex 6 should be involved or represented in the alliance(s). It will be important for the full range of family justice professionals to be specified as part of the SSFA, including The Institute of Family Law Arbitrators http://ifla.org.uk/search-for-an-arbitrator/, local arbitrators and collaborative family lawyers.
7. There are additional services outlined at pages 33 to 34 of our Separation and Divorce – Helping parents to help children booklet attached which the Private Law Working Group (PLWG) might also find helpful to add to the services in Annex 6.
8. We would be happy to share our experience of linking with other services in the community as part of running our Family Matters project, a pilot scheme funded by the DWP in 2013-15.

Should this be overseen by the Local Family Justice Boards, or overseen/managed in some other way?

9. Yes, given where we are, this would probably have to be overseen by Local Family Justice Boards at this stage although non-court related oversight might make more sense and be more attractive to users. In the absence of a statutory framework and resources there is a risk of this initiative producing little more than court user groups. We believe that some boards are likely to be better equipped than others to manage an alliance and we are cautious about increasing their responsibilities too much, given their reliance on practitioner volunteers.  The guidance and support which boards themselves would need to lead and co-ordinate services providing parenting and other support, and to maintain an alliance, particularly in semi-rural areas, needs further consideration.
10. In addition, without a statutory framework ad additional funding, it may be difficult to engage in this initiative already hard pressed not for profit, community and voluntary services, which often lack stable and long term funding, especially if they have little or no existing contact with local courts or court user groups.
11. We are aware that there is no overarching national organisation to represent and/or support and nurture parenting support organisations and providers. The establishment of such a body should be encouraged for many reasons outside of the remit of this report. It could be key to the future success of the recommended Alliance and might be a more appropriate lead (bearing in mind the behavioural as opposed to legal issues involved), as well as find finding it easier to attract local services than a Local Family Justice Board.

Should the alliances have a local or national identity/organisational structure?

12. We think the alliances would probably need to have national led aims, objectives and standards overarching a local non-prescriptive structure in the first instance given that unfortunately there will not be consistency across the volume and type of services currently available. What support is available to people will depend on where they live. It is also the case that even if national bodies are involved, local services might not be able to easily commit.

MIAM

What more could be done to refresh or revitalise the MIAM to encourage separating parents to non-court dispute resolution?

13. Our strong view is that the statutory MIAM should be replaced by an Advice and Information Meeting (AIM) (or a Dispute Resolution and Advice Meeting) enabling people to receive a full explanation of all the dispute resolution options and their suitability and affordability, including mediation and litigation. In our experience, this would be more effective than the MIAM as a triage tool, likely make more people aware of mediation than would otherwise be the case, and better ensure a pre-assessment for other potentially suitable options. An AIM would make clearer to those who assume or feel that their dispute is unsuitable for mediation that there may be other options to help them reach an agreement and avoid making an unnecessary application to the court, and to help parents to focus on the common aim of resolving their issues for the benefit of their children.
14. Parents also need wider and easier access to a choice of providers. Family lawyers, collaborative practitioners and arbitrators as well as mediators, would be well placed to provide AIMs or the content of such at early legal advice meetings, subject to having completed and attended an appropriate (affordable) course and ongoing appropriate monitoring and training.
15. Resolution broadly supports the recommendations (8 to 14) made in the report, in the context of the scope of the PLWG’s terms of reference. We think some of the recommendations could be strengthened or expanded (see below). We welcome the recognition at paragraph 73 of the importance and positive impact of early legal advice.
16. In the absence of a statutory requirement for the respondent also to attend a MIAM and a sufficiently robust framework and application, we agree that the (statutory) MIAM has unfortunately not steered families away from court as envisaged. Mediation does not work for all families and could never be a panacea, including in a post LASPO world.
17. Resolution expressed concerns from the outset about the MIAM title and the primary promotion by government of one option to the public, mediation. We believe that many parents are potentially uncertain about the purpose of the MIAM and sometimes wrongly think that their only options are mediation or issuing a court application. Mediation is an important and successful dispute resolution process in suitable cases.  But the collaborative process, round table negotiations, arbitration (both the children and money schemes) and private FDRs may be more suitable or alternative options in some cases.  The understanding of different processes by a professional, and the accuracy of the information and the explanation provided by a professional to a parent, are also fundamental to that parent making an informed choice i.e. knowing about a process, understanding it, believing it is appropriate for them and starting to use it successfully.  Otherwise the parent may not know about a process at all or simply assume it isn’t suitable.
18. Resolution would ask the Working Group to give serious consideration to making an additional recommendation that government work with Resolution and other family justice professionals to develop and pilot an AIMs system with a view to amending the Children and Families Act 2014 and the supporting secondary legislation.

19.Government should also be encouraged to revisit how legislation could be used to better engage respondents in the process, including looking to how the civil and tribunal services make out of court resolution more of an expectation.

20. Returning to the specific recommendations in the report:

20.1. Recommendation 8 is welcome, but we wonder if the information in Annex 7 is too court focused and over long and might be condensed and improved to attract the attention needed about the value of a MIAM, bearing in mind the length of the C100 and so on.  The content might in fact be more appropriate for a judge’s letter accompanying court forms and any further communication/s from the court, to either or both parties, using appropriate nudge wording to explain why the applicant must and the respondent should attend a MIAM (or AIM)  and the judge’s expectation that they will usually have done so before coming to court.

20.2. Accurate information must be given to individuals about the full range of means of resolving matters.  For the reasons stated above and in the report, and in the likely absence of changes to legislation in the foreseeable future, we agree that the FMC should be invited to revisit as a matter of urgency its Code of Practice around the content and delivery of the MIAM (recommendation 9).   There should be a more detailed explanation of how collaborative law and mediation can work to resolve disputes and enable people who maybe can’t speak to each other to have a constructive, assisted dialogue aimed at finding solutions.  We strongly support the removal of the option of a joint MIAM which should be a freestanding recommendation.

20.3. We note paragraph 63 (and b.2 of such).  The use of family mediation in relation to families where there is or has been actual or risk of domestic abuse has remained a difficult and complex issue and there are differences of opinion within the mediation community as to the appropriateness of mediating where there is or may be domestic abuse in the couple relationship.  Mediators are often faced with difficult decisions in that couples who lack funds, for example, for legal advice or who are unwilling for any number of reasons to seek the help of supporting agencies are often simply unable to find means to make arrangements for their children.  Generally, family mediators have a responsibility to ensure the safety of any individual involved (and especially any child or children) and are required to assess carefully ahead of any mediation the suitability of a mediation process for the individuals involved, given the circumstances reported to them.   This would include screening and assessment as to whether there is or has been (or is risk of) domestic abuse of any kind and of an individual’s capacity to speak and to negotiate on their own behalf.   Clearly where there is or has been a pattern of abusive, coercive or controlling behaviour, individual capacity may be a particular issue as victims may be very aware of the consequences of not complying with what their partner wants from any mediation process and/or may lack confidence or self-esteem to negotiate freely.

20.4. We would currently express caution about the use of ‘shuttle mediation’ in domestic abuse cases.  It is important not to align an imbalance of power (which is not necessarily coercive) with coercive control. ‘Shuttle mediation’ can be problematic in terms of an inability to ensure the safety of individuals outside of the mediation (especially where they may remain under the same roof) and in situations where an individual lacks capacity or confidence to speak to their own needs.  We don’t think ‘shuttle mediation’ is currently likely to improve the ability of many victims to speak on their own behalf or to feel safe in seeking a solution suitable to their needs.  At present, there is no national standard for the conduct of ‘shuttle mediation’ or research around its benefits and risks.  There may be scope to discuss with all relevant stakeholders how it might be used more effectively, for example, if being in separate rooms in ‘shuttle mediation’ may be a preferable option for some to being in the court process and the same court room.

20.5. We note paragraph 63c.  We would resist having any further requirements added to the already-onerous training and accreditation process requirements of the FMSB and the extensive costs of such.  It would in fact be timely to reconsider the need for a mediator to be accredited to conduct a MIAM (which is of course not a mediation) with mediators receiving robust MIAMs training as part of qualifying as a mediator.

• Mediator numbers are reducing. We estimate that only around one third of the current mediator community conducts MIAMs, with a small proportion of these being statutory MIAMs (i.e. to enable an application to apply to the court).  Lack of availability of an accessible provider within a reasonable time results in statutory MIAMs exemptions.
• There are currently barriers to achieving mediator accreditation, not least cost, and our members report that conducting MIAMs, together with the pre and post work involved, has proven to be not economically viable at public or private rates (even if undertaken remotely).

We would ask the PLWG to consider recommending that the FMC urgently review the level of mediator practitioner authorised to conduct a MIAM (persons identified by the FMC as qualified to conduct a MIAM as set out in Rule 3.9 FPR 2010).  This might be by removing the need for ‘accreditation’ or having an ‘accreditation’ for those recognised to conduct MIAMs on  a modular qualification towards accreditation.

20.6. Resolution notes recommendation 12 that it would be valuable to conduct a trial by which parenting agreements concluded in mediation become open documents.  We would go further and argue that there is in fact no need to run a pilot.  If a mediator concludes a parenting plan with clients, some already suggest that it is lodged with the court and can’t be privileged given that it relates to children.  All that is needed is some clarity around the issue so that participants in mediation and practitioners are clear about the position : discussions during mediation, including any direct discussions between the mediator and the child as part of the mediation, are confidential. Draft parenting agreements crafted in mediation are ‘without prejudice‘ documents.  Once both participants agree that the document accurately reflects all that needs to be included and a final document is agreed, that becomes an open document.  Consideration might also be given to solutions made in mediation being made into a court order by an expedited process.

20.7. It would be helpful if recommendation 13 said that MIAMs ‘should’ be attended separately.  It is the experience of our members that the LAA is pressing for more meetings to be joint for the purposes of approving payment.  This approach risks individuals being coerced into attending with an abusive partner.  It is also the case that the thought of a joint meeting can be a deterrent to some respondents, who might otherwise attend and benefit from an individual meeting.

21. In our members’ experience, there often simply isn’t sufficient enforcement of MIAMs by the court, or ongoing reappraisal and promotion of the use of other processes to resolve non-legal issues which might be better resolved outside of the court process. Some judges need to know more about the nature and suitability of other processes and would benefit from training on mediation, children arbitration and other processes.
22. There may also be scope for future development of means to explore in more detail whether and how parties to proceedings have been invited to consider the use of out of court options, and whether they and their legal representatives have reasonably engaged with such invitations.
23. Other suggestions for revitalising the MIAM include the introduction of a national online booking system for a MIAM; and asking both applicants and respondents to provide a fuller explanation for non-attendance on the C100 or a new information and response form for respondents (discussed below).

GATEKEEPING AND TRIAGE

Do you support the changed arrangements for gatekeeping? And for triaging cases?

24. Resolution members consider that resources need to be focused on the early analysis of cases to make sure they set off in the right direction and proceed more efficiently to save time and resources in the longer term. There is little point to putting off a fact finding hearing. Some of the challenges in the private law children system could be resolved by proactive and early case management from experienced judges who are there from the start and stay involved with the case, or at least by an early and effective triage hearing to consider all issues and deal with the facts so that the parties and the case can move on.

25.Whilst we are broadly supportive of the idea of placing cases on tracks, our concern would be about a triage stage introducing an extra level of decision making without the parties having been before the court, and whether that would be dealt with by the right level of judge with appropriate expertise and rigour, including up to date expertise to identify domestic abuse cases when they are not so obvious whilst recognising that in some cases it is not possible to gauge the safeguarding threat level until allegations have been committed to written evidence.

26. Our members have raised whether the suggested changed arrangements will just build in another administrative tier and/or more delay. Applicants, and children, generally need to proceed through the system more quickly once an application is issued. 4 to 6 weeks after issue seems a long time for people to wait for the triaging of cases to take place and is a long gap when there is a conflict building and/or the child is not seeing an absent parent.  Unfortunately, parties are likely to continue to feel that it takes too long to get before the court and for ‘anything to happen’.
27. They have also queried triaging taking place based on written, non-verbal communication only, without the parties actually being there at the time and without all the dynamics in front of the triage judge, for example, in a case where coercive control is not evident from the papers it will be even harder to identify. We are not sure that triaging judges could actively consider the use of S11A without the parties having been seen and written evidence of any allegations considered.
28. We are unclear whether urgent cases would be listed for fact finding at the gatekeeping stage. The flowchart provided does not seem to put any timescale on when a fact finding hearing would happen relative to the date of issue.
29. Ultimately triage would be successful if it were to ensure that earlier and more expert consideration were given to more cases, with earlier fact finding as necessary, than is currently the case. Our view is that triage and case management should be judicial led, with both parties present and placing to track at the first hearing.
30. Who will triage/ be in the triage team under the current proposal, seems to us to be a significant issue. We think that allocation and triage should be a judicial function. Triage by a district judge or more senior judge, perhaps a triage judge for a particular area (including for ‘returners’), would be most likely to rightly set the framework for a case, increase the prospects of settlement where possible, and be an efficient use of resources. It would give signals to the magistrates around how to most effectively deal with the matter. Knowing that a judge of appropriate level had decided and set the case on track would, we believe, give increased confidence in the system for our members and their clients.    ‘Returner’ cases would be triaged by the original triage judge -it should not be possible, for example, for a party who simply doesn’t like a decision subsequently made on track 1, to be relisted a few months later unless there are grounds to reopen the original decision.
31. We have concerns around the proposed role of Cafcass and an expanded safeguarding letter as part of the changed arrangements. We consider that considerations, analysis and decision making around urgency, track allocation/steps and options within track, case management options, the need for a s.7 report and the need for a fact-finding hearing are vital tasks and legal decisions that the court should undertake as part of the management of the case, with the parties being given a fair and proper opportunity to make representations.
32. Expansion of the safeguarding letter as widely as suggested would seem to inappropriately add to the responsibilities and workload of Cafcass/Cymru and before and without a Cafcass practitioner having any direct contact with the child. Our members view is that the focus of Cafcass should be on use of their social work expertise with an initial focus limited to providing safeguarding information and making recommendations (iii) and (iv) in recommendation 17.
33. Whilst it is proposed that Cafcass would be making recommendations only to the triage judge, we fear that a hard pressed triage judge, or magistrates dealing with the case, would take a limited approach and just follow the recommendations in the Cafcass letter, for example that there are no issues, without further analysis. If there was any delay in receipt of that letter, there is a risk that matters would not progress at a conciliation appointment/ expanded FHDRA, certainly if the matter came before certain magistrates.
34. A call with Cafcass won’t give time to identify and draw out issues. In addition, there is the risk that parties will prepare in advance for and ‘game’ within their first telephone call with the Cafcass practitioner. A party could be directed what to say by their former partner and it would be difficult, if not impossible, to rule out coercive control over the telephone.
35. We do agree though that allocation and triage should be based on and would be aided by more basic case information provided by the parties, not just third party information. The digital C100 might be used to better collect the type of information a good family lawyer would ask for at a first client meeting, for example, about what is your case and what have the arrangements for the child been over the last six months, avoiding Cafcass being asked to collect and filter or analyse that information. We also think that the respondent should be required to file in 14 days a form C101 limited to say 4 pages, instead of the current acknowledgement and C1A.  This could also feed into triage and give the respondent more opportunity to provide similar information (not a position statement) to assist the triage judge to identify and consider the genuine issues and assess engagement with the MIAM process and out of court processes.  So the triage judge would have the safeguarding analysis and court forms from both parties.
36. We agree with the PLWG about the importance of piloting any new approach. There will be a need to evaluate that this and other changes do not unintentionally exacerbate the current problems. We note the points made in paragraph 101 and it will clearly be important for a pilot of these or other changed arrangements to evaluate the impact on overall timeframes, efficiencies, rate of ‘returners’ to court, and most importantly on court users and their children themselves.
37. We would expect those responsible for triage to be trained in any future system.
38. We suggest that any changed arrangements (whatever are adopted) and the early identification of issues would be better supported by a statement of information in a new form C101 from the respondent.
39. We set out here our views on recommendations 21 to 24 on ‘Conciliation Appointments’:
40. We are not currently persuaded about removing the FHDRA, as at least the individuals are seen and decisions can be made about progress. If the FHDRA is effectively being extended to include more efforts at conciliation, more judicial time for them will be needed, supported by effective earlier triage to identify appropriate cases for ‘conciliation’. We understand though that any changes would be piloted.
41. The view of many of our members is that the current FHDRA serves a purpose and can be particularly effective in narrowing the issues, including for the purposes of fact finding, and avoiding a final hearing when it happens in a timely manner and before a district judge. A judge explaining to a party that they are way off base and their position is untenable, and prepared to resolve the matter that day, can be very powerful. It is less effective where treated as a case management hearing only, for example, when magistrates are reluctant to make any substantive decision or there is no power to do so.  Equally, the determination is sometimes not the issue, it is how to reduce the conflict sufficiently that any arrangements could work.
42. There are some concerns about the use of conciliation by either judges or Cafcass practitioner, although there are probably less concerns in relation to judge led conciliation. Specific concerns raised by our members which the PLWG may wish to consider and/or feed into pilot and evaluation preparation relate to:

• Whether in practice these would be more than quasi head-banging appointments with no narrowing or determination of contested issues. An appointment is less likely to be effective if there is no power or use of such to resolve the matter. We think they would need to be district judge led to be effective.  It is worth noting that the former ‘Essex model’ was developed at a time when there was far less use of family magistrates.
• Previous research[1] indicated that in court conciliation appointments did get a high level of agreement but, they didn’t deal with underlying conflict, leaving any children still stuck in the midst of conflict between parents which could be exacerbated by an agreement made in conciliation that one or both parents didn’t want to comply with.
• In some cases adjournment for mediation or use of another process away from court will be more effective than making decisions at court under pressure without support or time for reflection.
• How much time would be allowed for appointments so that they are effective, avoid further escalation and the case returning to court, and to identify should a case in fact not be suitable for the appointment at all.
• Whether Cafcass practitioners would be adequately trained and allowed sufficient time for each appointment.
• The appointment not being a privileged process and how that would actually work. What would be the formal legal position of the judge or Cafcass officer in the relationship? In a situation where a conciliation takes place and one party in particular disagrees with the judge or Cafcass officer, how would that be managed and perceived/potential unfairness be properly marshalled and mitigated? If the process was privileged that might take away some concerns about cases being appealed or returning, but issues around available resources to provide any subsequent report would also need to be carefully considered.
• Conciliating is a skill, individuals need to be trained.
• Whether any legal representatives would be present with their clients.
• We are not sure how LiPs are likely to view these appointments.
• There has to be some kind of help to move parents from the point of any agreement to making it work and ‘stick’, the only ways available are mediation and/or parenting co-ordination. In the former, at present, it can’t be funded by legal aid because effectively, there is no ‘conflict’ at that point.
• The title conciliation appointment might sound too like reconciliation to lay users.

43. Finally, we note paragraph 113 about ‘at court mediation’ by mediators for track 1 cases. The advice of our mediator members is that court is not the right place for mediation. We are cautious about moving towards a ‘Cafcass Light’ alternative under the guise of ‘mediation’ and we suggest the proposals will require further thought and clarity.  Previous ‘at court mediation’ arrangements have not been workable, cost effective or sustainable.
44. There are also difficulties about the role of the mediator within the court precincts. Mediators are not officers of the court and conciliating is not mediating, so there could be breach of code of practice and lack of protection issues for mediators.
45. The difference between conciliation and mediation is that a conciliator is more interventionist and can provide, for example, possible/probable solutions and generally rather more guidance than a mediator who is a facilitator of disputants/parties reaching their own solutions. Conciliators are often those with expertise in the subject area in addition to being trained in conciliation.

TRACKS

What are your views about placing cases on ‘tracks’ once in the court system?

46. We welcome the careful consideration of how you can stratify cases. We agree that placing cases on ‘tracks’ is a sensible approach, with the option to ‘come off the tracks’ if you choose to take an alternative route to resolution. It seems to us to be a good idea to separate out cases that are more and less complex.
47. We agree with the PLWG’s views about the need to carefully name the tracks. Simply using track numbers might be the most straightforward approach.
48. These recommendations will, in our view, be most effective where the right decision on track and where the case is most likely to settle is made at the triage stage.
49. We wonder if the final report should address whether and how it will be possible to change track. Those conducting track 1 cases, where the court will still need to remain vigilant and alert to any abuse arising along the way, will still need to be trained to understand domestic abuse and transfer to track 2 where necessary.

Do you agree with the distribution of work between tracks 1 and 2 based on complexity?

50. Yes.
51. We suggest that key complexity factors should include the extent of any disruption to the relationship a child is presently experiencing with one of their parents.
52. We wonder whether there has been opportunity for the PLWG to consider urgent cases, how urgency is defined, how that affects what track a case would be on and how it would be dealt with differently from non-urgent cases on the same track.
53. The interim report appears to provide that a track 2 case would definitely be overseen by a judge, whilst a track 1 case may be and would most likely be dealt with by magistrates. It would be helpful if the final report could clarify that and the level of judge who would deal with cases in track 1.

SPIPs

Could/should we encourage more parents to attend SPIPs?

54. Yes. And SPIP content can also be extremely useful to mediation clients and those using other out of court processes.

If so, when and how?

55. As a preliminary point, more SPIPs need to be available, and we would like to see a national body to support SPIP providers. Courts need to be clear about the SPIP provision in their area and provide full information on what is available.
56. Ideally, parents should attend a SPIP as early as possible, preferably before the issue of an application. One of the benefits would be that more parents would enter a MIAM and consideration of all the options in a more positive manner.
57. A SPIP and a MIAM are clearly different, but it makes no real sense why only one is compulsory before an application can be issued. Having a mandatory SPIP (with exceptions such as an emergency) as well as a MIAM may be very useful in appropriate cases. The PLWG might make a longer term recommendation for consideration of legislation and funding to provide for such in light of the value of early intervention.
58. In any event, some key and reliable SPIP/co-parenting content could be made available online as a supplemental resource to supplement but not replace face to face SPIPs which can be so effective – both need to be available. Whilst it might not be easy to monitor the use of online information post issue of an application, this would be another tool for parenting support services, practitioners and judges to nudge the parties towards, to help them commit to the process and sell attendance at face to face SPIPs.
59. More nudges to and questions on why parties haven’t attended a SPIP could also be generally built into the process.
60. The funding gap between issue and first appointment needs to be addressed.

What are your views on the arrangements for ‘returner’ cases, specifically, their early re-allocation to the original tribunal for triage?

61. Aside from track 3 cases/ cases heard by a circuit judge, we are not sure that re-allocation to the original tribunal for triage, primarily in the case of the same magistrates who heard the previous case (on track 1), would necessarily be the right approach in every case. Whilst judicial continuity might assist, there would need to be specific provision for the tribunal to which the case returns to consider whether the tribunal failed to address safeguarding issues or erred in the final order they originally made, and the reasons for that error, and whether the case would not be more suitably dealt with by another tribunal, including another level of tribunal.
62. On balance, we would prefer to see explicit consideration of whether the original tribunal had been of the right level.
63. Again, making the right decision on track at the original triage stage must have some impact on avoiding some ‘returner’ cases.
64. We are also not persuaded that fresh or new safeguarding checks should not be ordered at gatekeeping in a ‘returner’ case. Incidents of abuse could easily have occurred since the previous case concluded. Furthermore, one party could have perpetrated abuse involving a third party.
65. We would not really wish to see further lengthening of the C100, but we would have no objection to the C79 being taken out of circulation with the C100 including a specific enforcement section, subject to it being made plain enough to a party completing the form, and the receiving court, what the purpose of the particular form being submitted is and which parts require completion.
66. It would be helpful if mediators also knew the answers to specific enforcement questions including around any previously made order before seeing someone for a MIAM.

RECOMMENDATIONS

Do you have any comments on any of the recommendations not covered elsewhere in your response?

67. We agree that there is a need for further research on the unmet needs of separating families (including a review of existing research outcomes, and of approaches in other jurisdictions), together with a need to think about ways to teach parents about how to communicate non-emotionally with each other and guide them towards dispute resolution processes without any formal interaction with the court where possible.  The cultural shift aspired to requires the support of a guided pathway and resources.  We are supportive of the aspiration of a National Non-Court Dispute Service (NNCDR) (recommendation 1).  What exactly it would look like, how it would be set up and funded, how it would differ from Cafcass and the link between any NNCDR system and the family court system are of course significant issues.
68. Recommendation 29 around digitisation seems sensible.
69. It is not clear what consideration has been given to the user experience in the current or recommended system. We strongly support the PLWG’s recommendation on pilots (recommendation 30) and would welcome piloting and evaluation of particularly any new gatekeeping and triage arrangements and conciliation appointments.

70.We suggest that any future pilots or workstreams agreed as an outcome of the work of the PLWG should involve a broader range of non-legal professionals working with families and children, such as family consultants, as those are taken forward.

71. We will not repeat here all the arguments and evidence in favour of early interventions and early legal advice and family legal aid. We strongly support the views about this expressed at paragraph 73 of the report.

GENERAL

Do you have views on any other aspect of the report?

72. We appreciate the work of the President’s Private Law Working Group and the context in which it has had to make its deliberations and recommendations. We think that the recommendations overall helpfully seek to streamline cases within the system. However, in our members’ view there seems to be little, if any, scope within the potential changes to the CAP to require that things happen more quickly than at present.
73. Some separating and separated people simply need help with co-parenting and to sort out the arrangements for their children. That can be for many different reasons and without there being any safeguarding reasons[2]. Our message to policy makers is that longer term solutions will require more radical reform and appropriate investment in both early family support and legal advice and the family justice system as a whole.    Otherwise, people will not self-regulate, the volume of private children court applications won’t lessen and the family court system will continue to struggle to meet demand, provide a service for those applicants needing the protection of the court, and the challenges of dealing with unrepresented parties.
74. Resources will need to be dedicated to achieving culture change and helping people understand where court is inappropriate, and to early analysis of those cases coming before the court to make sure they set off in the right direction.

75.We suggest that public awareness campaigns would also need to focus on helping people to understand what is driving certain behaviours and charged emotions which may essentially be the fear of losing your child.  Some information on how to see things from your ex’s or child’s point of view is already available but could be better and more widely used.

76. Expert service design and delivery services and resources will also be needed to successfully implement some of the PLWG’s recommendations. For example, for more conciliation at court and to co-ordinate and maintain a SSFA. The local and statutory services that are in place are hard pressed already and are not likely to have the scope and resources for the SSFA without additional funding to engage.
77. A significant gap in the report is the lack of mention of children arbitrators, collaborative law, or the involvement of family consultants in that or the mediation process, or of parental co-ordination services.
78. The IFLA scheme of course provides people with a quasi-judicial process as ultimately someone else makes the decision. Some people need a decision, they don’t necessarily need that to be made in court. There are misconceptions about the range of matters arbitration can be used for.  Resolution and other IFLA members have suggested that court staff and the judiciary should have a positive duty to signpost people to children arbitration where courts are facing a particularly acute backlog and a case is being delayed for reasons outside the parties’ control, and where, in the opinion of the judge, the issues to be determined are relatively discrete.   There are anecdotal reports that HMCTS has itself referred and paid for cases to be determined by a family arbitrator.

79.We reiterate our call for the piloting of AIMs to evidence that this would be more effective than MIAMs to provide pre-assessment of all dispute resolution options.

80.Turning to specific other aspects of the report:

80.1. Domestic abuse cases:   We note the relevant section of the report and the treatment of these cases as a priority area.  It is the experience of our members that understanding of abuse and familiarity with PD 12J varies from judge to judge, legal adviser to legal adviser and so on.  We await other developments as outlined in the PLWG’s report.

How to better to spot and obtain information on the more subtle forms of domestic abuse – coercive and controlling behaviour- and associated manipulating behaviour coming before the court, and what happens next, does need to be addressed.

80.2. After care:  Management of expectations is important.  Certain issues should not be for the court even if an order made is not working.  The provision of information by the court once an agreement or order is made about where to go next if there is a need to renew communication as parents and/or to assist with keeping arrangements in place is important. This should include information on mediators and parental co-ordination services.  A post litigation online portal would be helpful.

80.3. Private law flowchart:  We think this is a good idea and indicates how important proper case management is, but we fear that its complexity is not going to be easy for unrepresented parties and the public to follow.  It might be more clearly presented as a flowchart up to triage with separate flowcharts for track 1, 2 and 3 cases.  It would be helpful to have some indication of timescale on when a fact finding hearing would happen relative to date of issue.

Resolution, September 2019

[1] Trinder L,KellettJ.Things can only get better? The longer-term outcomes of in-court conciliation , 2007 London Department for Constitutional Affairs

[2] Cafcass’s 2018 Manchester ‘Support with Making Child Arrangements’ pilot indicated that only up to an estimated 20% of cases coming to court may be suitable to resolve without the need for court, but the majority of those 20% of cases have a high level of conflict when they come to  court and cannot be diverted.