Ann Chavasse, senior family law specialist with considerable High Court and Court of Appeal experience, on the fairness of settlement conferences.
The ALC commissioned research into the fairness and efficacy of settlement conferences (SCs) in public law cases.
This was a limited study involving interviews with 19 advocates involved in 61 settlement conferences in the initial five pilot areas.
The study runs to 145 pages, but below is a very brief synopsis of the findings.
1. There was no consistency in case selection by the Court.
2. There was some evidence of the procedure being “imposed” on parties, including vulnerable parents, parents with limited capacity, some who didn’t understand the procedure and some reported feeling bewildered.
3. Most judges were found to adopt a calm, patient, facilitating manner towards parents. Informality, when overly friendly, risks subtle disarming and manipulation of parents; some approaches could be patronising. But a small number of judges were described as brutal, harsh, blunt and insensitive with parents.
4. Advocates felt that there was pressure on parents to consent to an order, both direct and forceful or subtle and disarming, so that refusal to agree was made difficult. Evidence of pressure on local authorities to change their position was rare.
5. Where the issue was adoption, advocates were “very uncomfortable” with the approaches of some judges and most felt that these cases were unsuitable for settlement conferences.
6. There were concerns over Article 6 and Article 8 rights.
7. In some courts, the role of advocates was marginalised, potentially leaving the parents exposed.
8. The role of young people and competent young adults has not been sufficiently thought through. There were concerns that the views and voice of the child were not being truly heard or relayed.
Was the procedure fair?
The result provided a mixed picture.
a. 2/19 said the procedure was unreservedly fair.
b. 5/19 said it was not fair.
c. 8/19 had a mixed experience – some settlement conferences were fair, others were not.
d. 3/19 said they were fair in the main but there remains pockets of concern.
Key concerns were:-
i. Timing – SCs being rushed and chaotic
ii. Variations of judicial approach
iii. Lack of criteria for case selection
IRH (Issues Resolution Hearing)
Most advocates thought that a properly conducted IRH, with sufficient time allocated, could have reached the same result.
Most advocates thought that the procedure was appropriate for few public law cases but, with amendments, might be appropriate for private law cases, placement disputes between family members and contact issues.
1. Findings to date do not support a roll out of SCs in their current form.
2. Further evidence/research is required.
Many of us had grave reservations about this initiative, feeling that the imbalance between the position of the parents and the Judge would inbuild pressure and a disregard for Article 6 and 8 rights.
The upshot of this survey appears to be that the advocates involved viewed settlement conferences as inappropriate for cases where:
- there is a dispute about threshold or fact finding
- adoption is the issue
- parents have:
o mental health difficulties
o learning difficulties
o communication, language or comprehension limitations
- to which, I would also add, vulnerable parents.
These categories cover most care cases. So it seems to me that settlement conferences, as currently formulated, are likely to be appropriate for a very small number of care cases.
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