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Family review panel pins hope on mediation to achieve efficiencies

6 July 2010

Achieving more for less is the challenge set by the government to the Family Justice Review Panel as it embarks on a three-month review of the family justice system.

The panel, chaired by David Norgrove, has been asked by the government to develop proposals for a system which is “simpler, more cost-effective, timely and just”.

Mediation, Norgrove said, was one of the solutions the panel would be considering, as per the government’s invitation.

“Mediation is already available around the country but not consistently,” he told Solicitors Journal. “We need to think about how best to increase the use of mediation and to what extent it can be encouraged without damaging the effect on children.

But asked whether compulsory mediation was an option, Norgrove replied there was support for forcing parties to have their case assessed for suitability for mediation but that his team “needed to consider further if going through the process should be compulsory”. He added: “Not all cases are suitable for mediation.”

Collaborative law is another mechanism the panel will review to gather more tangible evidence about the success and potential of the process. At this stage, Norgrove said, “there are lots of words but not enough numbers; we need to do more research”.

Norgrove was brought in as chair of the Family Justice Review Panel for his broad experience in change management in the public and private sector.

While the official announcement focuses on two specific issues – better use of mediation and greater contact rights for non-resident parents and grandparents – Norgrove insisted the panel’s brief was to look at the whole of the family justice system, with a few exceptions.

These exceptions most notably include any consideration of law reform. The Conservative party manifesto contained proposals to make prenup agreements binding and the Lib Dems were in favour of introducing no-fault divorce and giving cohabitants rights equal to those of married couples. These issues have been left out of the panel’s brief.

Instead, the review will “look at how the different parts of the justice system are organised and managed”, including “the roles, responsibilities, skills and capacity of its workforce”, according to the call for evidence.

But, echoing the government’s concerns over rising costs, Norgrove said the growing number of applications in public law cases has led to delays and cost increases that were ultimately detrimental to the families and children involved.

He also acknowledged that the need to control costs and stem inefficiencies was now compounded by the pressure to achieve budget cuts.

Cafcass and social services were the object of severe criticism earlier this year, with many observers commenting about the lack of financial resources resulting in poor service and staff with questionable competences.

And only last month Lord Justice Thorpe in the Court of Appeal berated social services and the lower courts for being too hasty in placing children into care. In a ruling over a year ago, Thorpe LJ had also warned about the cost of the family justice system being “worryingly high”.

Norgrove responded that his team was “acutely aware of difficulties” but said their task was not impossible.

“Everybody can describe the problems but there is sometimes disagreement about the solutions. Coming up with something which is both affordable and right is a challenge but it has to happen,” he said.

Piers Pressdee QC, co-chair of the Association of Lawyers for Children, said one aspect of the review was whether there was room for a more “inquisitorial approach” in both private and public law.

“If we were to move to an inquisitorial system, it would be a huge change and I am far from convinced it would be positive,” Pressdee said.

“If you were a parent at risk of losing your child to care, surely you would want to be represented.”

Pressdee said there was “nothing new” about the emphasis on mediation. “It was promoted as an option by successive governments and in the right case it works extremely well. It is not right for every case.”

Compulsory mediation was a “contradiction in terms”, Pressdee said, and could lead to poor results. He said the family justice system was not “hermetically sealed” from the rest of society.

“Those working in the system are doing their best to keep it going, but it is like a bucket full of holes and close to collapse. Our primary concern is that children are at the centre of the system and their rights predominate.”

The consultation on the review closes on 30 September, with an interim report expected in early 2011. No date for the final report has been set.

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Procedures Marriage & Civil partnership Local government