New, innovative and better ways to handle the increasing number of care applications should be sought, according to the president of the family courts division.
Sir James Munby has outlined that as there is unlikely to be an increasing set of resources to draw from, new innovative ways of handling the surge in care applications should be visited “while never departing from the fundamentals” – namely that:
- Care cases, with their potential for life-long separation between children and their parents are of unique gravity and importance.
- It is for the local authority to establish its case.
- Common law principles of fairness and justice demand as do Articles 6 and 8 of the Convention a process in which the parents and child can fully participate with the assistance of representation by skilled and experienced lawyers.
The number of care cases are rising “seemingly relentlessly,” Munby says, and CAFCASS figures show that in the year to March 2016, there were 12,781 new cases, and increase of 14% from the previous year where there were 11,159 cases.
Between April and July this year there were 4,959 new cases compared to 4,118 in the corresponding three months the previous year, representing a rise of 20%.
“The reasons for the increase are little understood and are currently being investigated,” said Sir Munby, “We must however plan on the basis that there will continue to be significant increases.”
Indeed, CAFCASS chief executive Anthony Douglas recently warned that the surge in the number of care applications during 2015-2016 has become a “major issue” for the organisation.
Sir James Munby outlined two initiatives; settlement conferences and the tandem model.
Settlement conferences are something that he supports “in principle” and has encouraged a trial in Liverpool and pilot schemes in other courts. Sir Munby explains that during a settlement conference, which are an established part of the Canadian legal system, the judge hears from all parties on a without prejudice, confidential and legally privileged basis. If a settlement does not succeed in reaching an agreement and there is a subsequent trial, nothing disclosed at the settlement conference can be used during the trial.
Where a child is a party the child’s solicitor or guardian will ensure that the child’s wishes and feelings are made known.
“The ethos of the settlement conference is not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground,” he added.
The pilots will be evaluated and Sir Munby said he would will be looking closely to see whether the settlement conference approach compromises the fundamental principles of the public law system, such as the right to legal representation, Articles 6 and 8, the paramountcy principle and the importance of ensuring that the voice of the child is heard.
Turning to the tandem model, Sir Munby said the model is fundamental to “a fair and just care system” and only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model, the potential for injustice is increased he added.
He said he would therefore strongly oppose and watering down of this vital component of care proceedings but highlighted that the initiative “costs money”.
He concluded by making a further plea for restraint in the expenditure of public funds. “It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied,” the president concluded.
