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Lucy Reed

Partner, Freshfields Bruckhaus Deringer

The thin end of the wedge

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The thin end of the wedge

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Those who work at the coal face of family law should be properly consulted about potential changes to the system, writes Lucy Reed

Those who work at the coal face of family law should be properly consulted about potential changes to the system, writes Lucy Reed

Settlement conferences, as now finessed in Sir James Munby's 14th View, share many similarities with the original concept of an issues resolution hearing (IRH), at which it was once anticipated the judicial sleeves would be rolled up (as in an FDR in financial remedy proceedings), in the hope of resolving some or all issues by consent, issue management, or early issue determination.

One key difference between the early sketch of the IRH is that a settlement conference judge will have no further involvement with the case, and so does not have to keep an eye on stepping over the line, which would make her conduct of the final hearing inappropriate.

Settlement conferences - if successful - have the potential to bring positive outcomes both financial and human. If a way forward can be found that avoids the emotional and financial costs associated with a contested final hearing then it will be beneficial.

The question is whether the risks of this approach (untested in our jurisdiction) turn out to outweigh the potential benefits, both on an individual and statistical level. This is no doubt why the scheme is being piloted, but it is unfortunate that it has been launched with little or no consultation of bodies such as the Association of Lawyers for Children or the Family Law Bar Association, some of whom have subsequently expressed concern that the president's view has set out to allay.

The president says that the ethos of the scheme is not to apply undue pressure to parents, but it remains to be seen how parents will experience the process, given the wide discretion and possibly limited training given to judges taking part in the pilot.

More concerning is the apparent suggestion that the tandem model is under reconsideration by the Ministry of Justice (MoJ). While the president restates his support for the model and says he will not brook its erosion, he then goes on to moot the complete absence of either the guardian or child's solicitor from certain (unspecified) hearings.

I hold real concerns about this as the thin end of the wedge and a significant diminution in the protection afforded to the children in care proceedings. It potentially reduces a directions hearing to an adversarial dialogue between parents and local authorities that has the potential to be unhelpful to the judge attempting to case manage effectively with a clear focus on the issues for the child.

This news comes alongside report of Children and Family Court Advisory and Support Service (Cafcass) CEO Anthony Douglas mooting the possibility of legislative reform to enable a shift in the remit of the service to reduce or manage increasing workloads in such cases, apparently through pre-proceedings work to divert unnecessary applications pre-issue.

Once again, it is surprising to find such significant changes emerging in this way via the press, prior to any consultation with key stakeholder bodies. It appears there is a lot going on at the MoJ.

Early and transparent notification and consultation regarding such significant potential changes, with those of us who are involved daily in the work of the family courts and child protection systems, would both avoid unnecessary alarm (and the need to publish clarification) and would give the ministry the best possible chance of making effective changes that would use resources efficiently and meet the needs of vulnerable children and families.

Lucy Reed is a barrister at St John's Chambers. @Familoo blogs at www.pinktape.co.uk

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