Articles
Private Law Programme
The Private Law Programme is guidance issued by the President of the Family Division in relation to the implementation of a new framework for private children law cases.
The Programme, which will be implemented on a Court by Court basis, is aimed to further assist parents to safeguard their children’s welfare during relationship breakdown between the parents.
The guidance has three stated principles:
The guidance states that it has an overriding objective which is as follows:
To enable the Courts to deal with every children case
- - the parties are on an equal footing;
- - the welfare of the children involved is safeguarded; and
- - distress to all parties is minimized;
So far as is practicable, in ways which are proportionate
The Current procedure following an application for contact or residence is for the matter to be listed for a Directions Appointment, often received some four to six weeks after the application is made. The local practice is for a Welfare Officer to be in attendance at that hearing for the purposes of conciliation and an assessment as to whether a report is required or whether the matter can be settled there and then or referred to alternative dispute resolution.
The programme hopes that by the time that an application is issued the parties will have already had specialist legal assistance and other assistance, and the Court will investigate whether alternative dispute resolution can be used to conclude the matter rather than proceeding through the process of litigation. If Court proceedings are necessary then the new procedure will be for an early first hearing which will be intended to try and resolve the dispute at that stage. In line with the current concerns about domestic violence the hearing will identify “immediate safety issues”. The Court will also seize control of the proceedings at that stage, identify issues and timescales, the opportunities for resolution by referrals to support and assistance and any other steps that may be useful or necessary. It is intended that a CAFCASS practitioner will be available to the Court and, much as this happens locally currently, will aim to resolve the dispute at an early stage.
Of significant importance in the programme is the statement that save in exceptional circumstances, the Court will “direct that the family shall be referred for support and assistance”.
The support and assistance is stated to come from a Family Resolutions Pilot Project or alternatively locally available resolution services. These are to be listed and publicised by the Family Justice Council/Family Court Business Committees for each care centre. The suggestion is that these services will be provided by CAFCASS, Local Authorities, NHS or by voluntary service providers. This will clearly be a key feature of the programme from two points of view:
One can envisage two difficulties arising from these risks. Firstly in practice what assistance will really be available to families. What will CAFCASS be able to provide other than the reporting service which it now provides?
Social Services are notoriously difficult to involve in private law cases unless there are child protection concerns. How is a Judge at the first hearing going to be in a position to force “treatment and therapy” where a party does not want to undertake treatment and therapy, and in any event how does a Judge identify the need for treatment and therapy without re-ordering of reports from experts.
Secondly there must be the question about why these resources are not available prior to the first hearing dispute resolution. One can already see that there will be a temptation to make an application to the Court in order to access these resources after the first hearing dispute resolution if they are not available prior to that.
The effective court control will provide for judicial availability and continuity and continuous case management, the avoidance of unnecessary delay, transfer of cases, the identification of issues at each hearing and achieving the aims of each hearing, monitoring and reviewing the outcome and enforcement of the Court orders. Interestingly it also provides for the “controlling of the use and cost of resources”. Many practitioners will ask “What resources”? Are these resources that are talked about as being used save in exceptional circumstances?
Flexible Facilitation and Referral
The Programme promotes the use of parenting plans to assist parents to agree routine childcare questions. It goes on to propose that CAFCASS practitioners should “where possible” continuously involve themselves in facilitating and supervising orders and ensuring that orders in agreements work. Many practitioners will welcome this suggestion although question how with its limited resources CAFCASS will be able to undertake this extra work. The CAFCASS Officer will also be tasked with reporting to the Court the progress or outcome of any step the Court ordered. Presumably what is envisaged is the CAFCASS Officer undertaking a much wider variety of work than they would under their usual reporting to the Court at the current time.
The Process
The first hearing dispute resolution hearing will be listed within four to six weeks of the application. Not much change there then. It shall be attended by the parents, and unusually, by any child aged 9 or over, although only where “the local scheme provides for it and where resources exist”. This is clearly a significant departure from the existing position. Involvement of children in children proceedings, at least locally, has been shied away from. The aim has always been to discourage children being involved in the dispute in any way possible.
The Programme is not prescriptive. Therefore in any Court order facilities for “In-Court conciliation”, the CAFCASS Officer can assist. Where however those facilities are not available it is for the Court to identify issues and try to facilitate agreements. It can then refer the matter to CAFCASS for “oral or short written advice to the parties and the Court”.
As part of the promotion of clarification of issues at an early stage any order made by the Court must identify the issues and state the aim of the order. If there are issues that are not agreed between the parties, then it will be necessary for a decision to be made as to the extent to which these issues need to be determined. The Court should deal with:
The Programme provides a model scheme for the promotion of the In-Court dispute resolution and examples of information sheets for parties, leaflets for children and information sheets for Court Managers and Listing Officers. It is of course for each Court to make its own arrangements concerning programme and consequently it can be expected that it will be differing practice in each Court.
Of significant interest within the model is the speed at which matters must be dealt with by the Court including the issuing of applications on the day of receipt and the dispatch to the CAFCASS Officer a copy of that application. Copies of any information sheets must also be sent to the parties with a notice of hearing. CAFCASS will have to make a paper risk assessment and notify the Court of any particular risks or safety issues.
Conclusion
The Private Law Programme is not a rigid protocol such as that set up in relation to Public Law Children proceedings. Each Court must therefore set up its Programme individually. One can see the benefits of this as Courts across the Country operate in different ways. One wonders however whether this is a pre-cursor to a protocol that will be mandatory to the Courts. Many of the aspects of the Programme which the Court have to deal with are effectively already in place. The Programme should however concentrate the minds of all those involved, Judges, lawyers and parties, as to the central issues of the case, the aim of the proceedings and the achievement of those aims. This can only be a good thing. At the current time there is of course far too much concentration on the fact of the dispute, rather than as to the issues as to why the dispute has arisen and resolving of those issues.
In relation to the parties and children in a dispute it can only be beneficial for the resources to be made available for a resolution of those disputes without recourse to Court or a progression of litigation through the Court. It is far too common at the current time for matters to progress through the Court simply because there is no other option. The question however that must arise, is where those resources will come from. Unless resources are found, and paid for, to provide mediation, conciliation, support, facilitation, treatment and therapy the situation will effectively not change. The question must be whether CAFCASS can practically undertake the increased role that it is being tasked with, and whether Social Services, the NHS and voluntary providers will be available and have the resources to provide assistance.