Piloting progress in family proceedings

The introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) reforms in 2013 removed public funding for the provision of DNA, drug, and alcohol tests in private family law cases. Since the reforms came into force there have been concerns that the lack of provision for these tests was leading to delays in private law cases concerning children and, as a consequence, having a negative impact on their welfare.

As a result of this change, it was agreed to run a pilot project to explore how public funding for the provision of DNA, drug, and alcohol tests could work where such a test was judged to be necessary to resolve the case. The Ministry of Justice (MoJ) implemented the pilot programme with the support of the president of the Family Division, the Children and Family Court Advisory and Support Service (Cafcass), and HM Courts and Tribunals Service (HMCTS).

The pilot scheme ran from June 2014 to November 2014 in identified courts in two designated family judge areas in England. Both sites were discussed with the relevant designated family judges, who gave their support to the pilot scheme.

This article focuses on the provision of DNA testing, although some mention will be made of the other tests for drugs and alcohol.

Pilot scheme

The delivery programme was supported by a training and awareness programme, which included briefing sessions that took place at both sites. These sessions included members of the judiciary, HMCTS, solicitors, and Cafcass staff.

The pilot was funded by the MoJ, overseen by Cafcass, and managed by a third-party organisation, Oxford Family Mediation. The testing service was commissioned from Oxford Family Mediation as a time-limited pilot, permissible through existing third-party service frameworks managed by Cafcass.

The pilot scheme was evaluated by MoJ analytical services and the evaluation report published in February 2015. The full report can be accessed from the MoJ’s website.

Information was gathered in relation to:

• The types of tests ordered;

• The stage in proceedings and the type of case;

• The time taken;

• Costs; and

• The inputs needed to ensure effective outcomes.

This information was used to inform the evaluation of the pilot and identify possible
future steps.

Information has been gathered by Cafcass that shows the average case duration in the area has been reduced by three weeks in the pilot cases. Half of the cases have been concluded at the first hearing dispute resolution appointment (FHDRA) and the other half at the post-FHDRA stage. There has been no identified impact on the timetabling of cases in the pilot area courts.

Clear communication

The establishment of the process was important for successful delivery. This included the early involvement of stakeholders such as the judiciary, HMCTS, and solicitors, as well as Cafcass staff. The importance of a clear communication process at the start of the pilot proceedings, including the use of launch events, was noted in the feedback that Cafcass received.

Training to support the implementation of the pilot was received positively. The evaluation suggested that additional training for the judiciary and legal advisers to enable them to make informed decisions on which tests to commission, and how to interpret them accurately, would enhance the benefits of the availability of expert evidence.

Representatives from across key professional groups were positive about the provision of funding for expert evidence in the pilot, and expressed a commitment to work collectively to ensure it worked effectively. Again, good communication between the agencies involved was considered essential.

The evaluation included a comparator area, which was selected due to its similarity in size and other demographic factors to the pilot areas. Research with professionals in the comparator area showed that ‘without such evidence the judiciary may have to make unsatisfactory orders. Orders made without expert evidence were perceived as less likely to be followed, and professionals suggested that cases would often be returned to court as the underlying issues had not been dealt with.’ It was also felt by professionals that it was difficult to progress cases without the results of a DNA test.

Feedback from Cafcass family court advisers following the evaluation was that active engagement with parties took place, supported by the training provided. The family court advisers, particularly on court duty, have a role in gatekeeping and negotiation with the parties and the court. They reported that this also contributed towards the appropriate ordering of testing.

Positive impact

Certainty around parentage is essential for the long-term stability of the child. The absence of this information can lead to lengthier hearings, continued conflict, and uncertainty – none of which is in the child’s interest.

The increased certainty that the provision of DNA tests in the specified cases has given to professionals and families has had a positive impact for the children concerned. This has contributed to a reduction in the time taken to reach decisions and allowed children to have a more certain future.

The evaluation found that professionals felt the testing provided increased knowledge and awareness about child safeguarding concerns and questions around parentage, as well as providing reassurance to all the professionals involved. They felt it supported the overriding principle that the child’s welfare should be the family court’s paramount consideration in making decisions about a child’s upbringing and allowed orders to be made with more confidence.

Next steps

Following the publication of the MoJ’s evaluation of the work in the pilot areas in February 2015, it was agreed that the pilot process for DNA testing would be concluded and the delivery of DNA testing across the country rolled out. The work in Bristol and Taunton has continued and the procurement process for delivery has begun. It is anticipated that the procurement process will be concluded later this summer, with the national programme beginning in September 2015. SJ

Kevin Gibbs is head of service at Cafcass