Written evidence from the National Children's
Bureau (FC 28)
THE OPERATION OF THE FAMILY COURTS
SUMMARY
The Justice Select Committee Inquiry into the working
of the family courts has invited written submissions from witnesses
in relation to specific areas of family court process and practice.
The NCB welcomes the opportunity to participate in
this inquiry as part of the wider Family Justice Review being
undertaken by Government. The challenge is to find a workable,
affordable but not inequitable system.
Alternative and less expensive means of resolution
lie at the heart of this challenge. The limited success of alternative
dispute resolution pilot projects focussing on mediation and collaboration
indicates that a new approach is necessary to give legitimacy
to this course of action and to encourage families to participate.
The potential to explore a new and expanded role for the child
in mediation is also central to this question.
CAFCASS's role has expanded significantly since its
inception and the structural and management difficulties experienced
by CAFCASS are well documented. A further structural realignment
may not be sufficient to address these concerns and the organisation
in its present form may be unsustainable. The role of CAFCASS
as a whole, and in particular CAFCASS's public and private law
functions, should be considered as well as alternatives means
of delivering CAFCASS's services. The rights and voice of the
child remain central to this.
Media access as a tool to promote transparency and
understanding of family court practice has presented as a double
edged sword. The wider public policy objectives of justice being
seen to be done may have come at the expense of individual children's
welfare. NCB believes that any proposals to open up access must
strike a balance between an individual's right to privacy and
welfare, and transparency.
INTRODUCTION
NCB is the leading support and development body for
the children and youth sector in England. We bring together agencies
from the voluntary, statutory and private sector, across education,
health, care, youth justice, and all other agencies meeting the
needs of children, young people and families.
The questions that will be addressed by NCB in relation
to this inquiry are:
- The role and functions of CAFCASS.
- Mediation and alternative forms of dispute resolution.
- Media access to family courts.
1. The effect of CAFCASS's operations on court
proceedings, and the impact on the courts of the sponsorship of
CAFCASS by the Department of Education
1.1 NCB is committed to ensuring a more child
focused family law system. It is a person's ability to communicate
with children, the quality of representation offered to children
and the ability to express and protect a child's interest that
are of paramount importance when assessing how that representation
should take place and by whom.
Cafcass's dual role
1.2 In Public Law: Where children are
automatically parties to proceedings under s.41 of the Children
Act 1989 and where the complex nature of cases requires a high
level of social work experience, knowledge of the law and an ability
to communicate with children, specialist officers are and should
continue to be used. This level of expertise offers protection
to the child's interests during court proceedings, as well as
providing an independent opinion to better inform the judgment
that will be made. The effect is similar to that of an independent,
expert witness.
1.3 NCB believes that the social work
expertise provided by specialist officers must remain independent
of local authorities to ensure the quality and impartiality of
the evidence given on behalf of the child. Otherwise, we risk
placing those officers under a potential conflict of interest:
to represent the best interests of the child, as well as provide
the most cost effective solution to the local authority. There
needs to be an agency in place to ensure that an independent social
work service is available and provided to a high quality. We have
no firm opinion whether or not the body responsible for that service
should be an improved and properly resourced CAFCASS, but we do
believe that the responsible agency needs to remain independent
of local government. The expertise we advocate is social work
practice expertise and an understanding of family law; therefore,
it is sensible that the sponsor government department for that
agency is the same as that which is responsible for children's
social care, which is of course the Department for Education.
1.4 In Private Law: It is arguable, however,
whether that level of social work knowledge and expertise is always
required in private law cases - with the exception of cases involving
a child protection issue. In those cases, a similar level of social
work experience and knowledge is required to ensure a child's
best interests are met and that claims are investigated properly.
Where a local authority is no longer a party to proceedings, questions
of impartiality are no longer an issue and limitations on representatives
need not be as restrictive. However, we firmly believe that children
in all private law cases - whether about residency or contact
- must continue to have their interests represented in court.
1.5 The role of the child in mediation
and early intervention currently falls within the broad remit
of CAFCASS. There has been a growing interest in whether children
affected by family proceedings in England and Wales do feel their
voice is effectively heard.[69]
A Mischon de Reya poll in 2009 found that 50% of children did
not feel that their wishes had been taken into consideration during
the court process.
1.6 If alternative dispute resolution is to be
encouraged and expanded then this presents an opportunity to extend
the role that children play in the decisions affecting them. A
child represented in mediation may benefit from extending the
options available to them - such as being represented in mediation
by another family member or adult to whom they are close. This
is dealt with in more detail in section 2 in respect of an expanded
and separate mediation sector that better caters for the role
of children in disputes that concern their welfare.
2. The role, operation and resourcing of mediation
and other methods of resolving matters before they reach court
2.1 The cost-saving benefits of a system
weighted in favour of mediation in lieu of court time will only
be realised if mediation avoids court and is seen as an
effective alternative to court rather than featuring as
a mandatory first step before court.
2.2 The mediation service: NCB supports
the development of a properly resourced, separate family mediation
sector that maintains ties to the legitimising role of the courts
but has separate functions, workforce and qualifying criteria.
The focus would be on working with, advising and helping families
to reach consensus alongside or on behalf of the children involved
in the dispute, rather than providing family advice to the courts.
This is a distinction that is not always emphasised in the current
dual system. The role envisaged is of a mediation workforce equipped
to communicate with and express the wishes of children, and requiring
a level of training and qualification commensurate with that -
although not necessarily a social work qualification.
2.3 Pre-application requirements: In private
law disputes over contact where there is no allegation of harm
or violence, the family courts would not accept applications until
a course of family mediation has been followed. Over time, where
consensus can be reached during mediation in certain private law
disputes over for example contact, school choice, holiday contact,
they could be dealt with outside of the court arena. As this becomes
normal practice, the process would gain more legitimacy.
2.4 Early intervention systems: A system
that places an emphasis on encouraging parents in a non-court
setting to objectively see what is best for their child. A Mischon
de Reya poll of 4000 parents and children commissioned in 2009
found that 68% of parents admitted to using their children as
bargaining tools in divorce proceedings, 50% of parents admitted
putting their children through an intrusive court process over
access issues and living arrangements, and 49% admitted to
deliberately protracting the legal process in order to secure
their desired outcome.[70]
The recommendation was for far greater early intervention to assist
separating couples in the form of "conflict clinics."
2.5 However, given the conclusion of the Family
Resolutions Pilot Project, what may need to happen is not for
mediation to be compulsory or forced upon couples, but that it
is presented as the first logical step once separation has occurred.
This would include the separation of married couples, those in
a civil partnership, and those in a cohabiting relationship where
children are involved. Involving lawyers in this collaborative
process may give it the legitimacy and standing for couples to
take it more seriously. The suggestion that a distinct and separate
mediation sector should emerge[71]
would perhaps remove the process too far from the legitimising
view of the court.
2.6 Compulsory mediation also denies the reality
that many cases are not suitable for mediation, for example where
there has been alleged domestic violence or sexual abuse, or even
where relations have broken down to such an extent that collaboration
is not possible. Similarly, where contact is frustrated it is
often only the court's power to intervene that can ensure compliance.
3. Confidentiality and openness in family
courts, including the impact of the recent changes in the Children,
Schools and Families Act 2010
3.1 Increasing media access to the family courts
as provided for in the Children, Schools and Family Act 2010 will
allow journalists to report on the substance of a case, whilst
preserving the anonymity of those involved. However, the publication
of anonymised information does not necessarily render it unidentifiable,
nor does it protect vulnerable individuals including children
from seeing sensitive personal information made publicly and widely
available. The conclusion of many senior practitioners is that
the welfare of individual children caught up in proceedings has
been sacrificed to the apparent interests of open justice.[72]
3.2 Our concern is that family courts will submit
to local and national media pressure, and prove reluctant to use
their powers to exclude the media where this would be in the best
interests of the child. Evidence has shown that parties often
ask to have the media excluded but that judges usually let them
stay.[73]
An additional concern is that placing an extra burden on the individual
to apply to exclude the media increases the number of preliminary
hearings and adds to pressure on the family courts.
3.3 It also remains to be seen whether the restrictions
of publication to authorised outlets will be sufficient to protect
children and families from seeing their stories reported - often
secondhand - in unregulated media (such as websites, weblogs,
campaigning literature and online discussion forums) that operate
without due regard to the privacy and protection of children.
September 2010
69 Hearing the Children, 2004 Jordans,
edited by Lord Justice Thorpe and Justine Cadbury Back
70
Mischon de Reya poll to mark 20th anniversary of the Children
Act, 2009: www.mishcon.com/assets/managed/docs/downloads/doc_2397/policy-briefing-paper-parental-separation-children-and-the-courts.pdf Back
71
Family Law, October [2004] - Cafcass Present and Future,
Jonathan Tross, p723 Back
72
Sir Mark Potter, former president of the Family Division, interview
in The Guardian, 6 June 2010, http://www.guardian.co.uk/society/2010/jun/06/sir-mark-potter-interview Back
73
Family Policy Briefing 6, The Media and the Family Courts,
December 2009, p2, University of Oxford, Department of Social
Policy and Social Work Back
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