Written evidence from Resolution (FC 30)
INTRODUCTION
1. Resolution is an association of 5,500 family
lawyers committed to the non-adversarial resolution of family
disputes and achieving constructive and lasting outcomes when
relationships breakdown.
2. Resolution welcomes the inquiry which the
Justice Select Committee has launched into the working of the
family courts.
3. Resolution's submission relates to the four
issues highlighted by the Committee in its call for evidence.
The effect of Cafcass's operations on court proceedings
4. Resolution shares the serious concerns of
others that Cafcass has not been in a position to deliver the
flexible service to the family courts hoped for when it was created,
our paramount concern being the children's best interests.
5. Resolution's members express ongoing disquiet
and we have regularly received anecdotal reports about the local
lack of availability of children's guardians and delays in the
provision of reports ordered under section 7 Children Act 1989.
Resolution has recently conducted a regional survey to obtain
evidence about the position on the ground. Resolution recognises
that there is a constantly changing landscape as between different
regions and within regions, but the findings (which are provided
to the Committee) provide a typical picture of our members' experience
of Cafcass service to the family courts and those families and
children affected.
6. In 2009 the immediate past President's Interim
Guidance for England set out "short term" measures,
with the agreement of Cafcass and their sponsoring department
and others, to assist Cafcass to deliver their services and secure
timely outcomes to promote the welfare of children who are the
subject of family proceedings. Whilst Resolution understood the
need for the guidance, our main concern was that the working methods
set out in it would simply become normal Cafcass practice. When
consulted earlier this year on the extension of the Guidance to
September 2010, Resolution agreed, albeit with some reservations,
that it was pragmatic for the Interim Guidance to continue given
the continuing difficulties in the family justice system. The
experience of duty guardian arrangements has appeared to us to
be patchy. Those which are active and engage in offering the court
an informed and critical view at the first hearing have obviously
been the most helpful.
7. We hope that the new proposed Agreement on
arrangements to assist Cafcass in public matters, from the end
of this September pending implementation of the family justice
review, will assist Cafcass to focus on the needs of the case
and compliance with the Public Law Outline. However, Resolution
remains doubtful that real improvements can be made in a reasonable
time frame.
The impact on court proceedings and access to
justice of recent and proposed changes to legal aid
8. Both the immediate and future landscapes for
family legal aid appear to us to be extremely uncertain in light
of the recent civil bid round tender process and the Government's
policy reassessment of legal aid. Changes to the legal aid system
are bound to result in a reduction in the number of specialist
solicitors carrying out legal aid work so that the most vulnerable
cannot access their help. Indeed the Legal Services Commission
(LSC) are not even in a position to confirm that the three year
contracts just awarded will not at some stage be terminated on
six months notice if new recommendations of that assessment require
such a step.
9. Throughout the move to competitive tendering
Resolution's key objectives have been to ensure fair process,
access to justice and quality.
10. At the end of July 2010 Resolution conducted
a survey of members undertaking family legal aid work to obtain
a clear and accurate picture of what the new landscape looks like
further to the latest civil bid round. The survey has revealed
grave concerns over the future provision of family legal aid.
Of the 561 firms who responded to our survey, 43% were successful
in their family bids, 41% were unsuccessful and 15% were partially
successful. Many appeals are pending. These figures reflect the
LSC's own assessment, but it has not yet provided a detailed report
as to the provision of legal aid on a region by region basis.
At this point it is difficult to judge what the exact impact on
access to justice will be, but 90% of respondents to our survey
said that they feared the results of the award of contracts would
pose a serious threat to access to justice. Our survey showed
worrying sings of "advice deserts" (lack of provision)
in certain areas, where family members will have to travel long
distances to access legal advice and representation and also of
losses of specialist domestic violence and public law children
practitioners. The full findings of the survey are provided to
the Committee. Any further findings relevant to the Committee's
work will be forwarded to the Committee as soon as possible.
11. Resolution is strongly pressing both the
Ministry of Justice and the LSC to address as a matter of urgency
the significant concerns of our members about the implications
of this process and emerging access to justice issues. It is suggested
that the Committee may also wish to probe with the Ministry of
Justice and the LSC their approach to addressing future gaps in
access to justice and the potential impact of an increasing number
of litigants in person using the family courts.
12. Any crude slicing of the legal aid budget
would be unhelpful and problematic. We would caution against seeking
over simple solutions or narrowing the gateway to the family court
to such an extent that those who need the court's input or protection
cannot access it, including in relation to finance and children
matters after family breakdown.
The role, operation and resourcing of mediation
and other methods in resolving matters before they reach court
13. Resolution explores, promotes and provides
training on non-court means of encouraging co-parenting and resolving
family disputes, if possible before matters reach court or away
from the court arena.
14. There are a range of options open to separating
and divorcing couples. Each family is different and individual
circumstances will determine which method is likely to be most
effective and constructive. No one method will be suitable for
all couples and it is unhelpful to view any one process in isolation
from other processes. Screening, the quality of referral to the
right option, and the quality of the provider used are important
in terms of diverting matters from the court and securing a lasting
outcome.
15. The choices available to couples upon divorce
or separation include parenting after parting information and
education; counselling; family therapy; to negotiate their own
agreement; traditional negotiation through solicitors; round table
negotiations; mediation; collaborative law; and arbitration. Resolution
members refer clients to parenting information and advise on and
refer to options, and providers of options, to reach an outcome
for the family concerned. 1,400 of our members are themselves
collaborative lawyers and 300 are Resolution mediators.
16. Resolution believes that the giving out of
parenting after parting type information at the outset (and without
the need for a court application) to divorcing and separating
couples about the impact of separation on children and co-operative
parenting is key to reducing parental conflict and the need to
access legal processes. Without some early focus on those issues,
dispute resolution tools will provide no more than a "sticking
plaster" in some cases.
17. All separating (whether married or unmarried)
and divorcing couples also need to be fully informed at the outset
of all available options so that they can make an informed decision
about how best to find a solution for their family. Resolution
urges consideration of how to incentivise the use of the full
range of non-court options before court. We are contributing to
the Family Justice Review's consideration of ways to incentivise
the use of and improve Alternative Dispute Resolution.
18. Resolution would support compulsory information
on all options as a means to improve take up of all options as
part of the divorce process and as a prerequisite to the making
of a private children or finance related court application (with
exemptions including for those with consent applications) and
policed at the point of the making of such. This would effectively
require the couple to both find out more, help them understand
what mediation and other methods are and make informed and voluntary
choices about what their family needs and can afford, and encourage
them to engage together and effectively in essentially voluntary
processes.
19. However, Resolution has reservations about
the provision of information and assessment limited to mediation
for all those who go to court on private children or finance matters.
The detail of the exemptions will be vital. We fully support mediation
as an option for those couples for whom it might be appropriate,
but there is a lack of clear evidence about the benefits of directing
people to compulsory assessment for mediation as against the benefits
of other approaches. Nor is there clear evidence of adequate assessment
and provider capacity at this stage, including for urgent assessments
without delaying less urgent cases. (In our members' experience,
the quality and meaningfulness of assessment for mediation currently
varies). This type of approach would assume that mediation would
lead to the best and most lasting outcomes and fails to address
the impact of such a change in approach on those cases where another
option would in fact be more likely to do so. It risks removing
at the outset other out of court options or opportunities and
the benefits of early access to them for the couples and children
involved; and removing the opportunity of making an informed choice
between processes in an area where one single approach will not
work well in all circumstances.
20. Legal aid is currently available for mediation.
Resolution has welcomed the proposed extension of legal aid to
collaborative law as a way to offer legally aided parties another
workable alternative to the court process and with it the opportunity
to reduce the number of cases taking up court time and resources.
However collaborative law would be more popular and effective
under legal aid if it were remunerated up to level 3 in the family
fixed fee structure.
Confidentiality and openness in family courts,
including the impact of the recent changes in the Children, Schools
and Families Act 2010
21. Resolution recognises and fully supports
the need to improve the openness and transparency of the family
courts so that justice is seen to be done and consistency is ensured.
22. The framework for the reporting of family
proceedings by the media should seek to protect the safety, privacy
and confidentiality of the children and adults involved in an
appropriate way. We welcome the provisions in Part 2 of the Children,
Schools and Families Act 2010 (the Act) providing protection of
certain types of information, including "identification"
and "sensitive personal information", which may not
be published unless the court allows publication.
23. However, as an issue of principle, Resolution
is concerned about the power given to the Lord Chancellor to remove
this protection in relation to "sensitive personal information"
at an unspecified time in the future. Although there are some
pre-conditions around removing this protection, we remain concerned
as to whether there will be adequate parliamentary scrutiny of
this significant policy change. The Act does not require Parliament
specifically to consider whether changing the treatment of "sensitive
personal information" and further opening of the family courts
would appropriately safeguard the interests of families, particularly
children (whether involved in public or private law Children Act
1989 cases) and vulnerable adults, or, indeed, achieve the desired
transparency of and confidence in the family courts. We do not
believe that removing these protections will serve the public
interest to ensure that the family courts are accountable.
24. We are also concerned that any relaxation
of reporting restrictions carries with it the risk of satellite
litigation, creating additional opportunities for acrimony between
the parties, and putting further pressure on court time. The Explanatory
Notes accompanying the Bill as introduced in November 2009 acknowledged
that court staff may need to carry out more tasks as a result
of the changes, "such as listing possibly more directions
hearings and preparing documentation for judges in more cases
than currently is the case". In particular, any presumption
in favour of reporting without the court's permission is likely
to lead to consideration of reporting issues on a case by case
basis. Information which is more sensitive will be more frequently
in issue. We would urge the Committee to consider the impact of
particularly the amending provisions to Part 2 on court delay,
especially their effect on the speed of final outcome in children
cases, and on court, public and families' resources.
25. Resolution also has concerns about the consequences
of publication of sensitive or personal financial information
which issue, in our view, received insufficient attention and
analysis during the passage of the legislation. In particular,
sensitive company information may come to light which may impact
on a third party or parties may be made vulnerable to criminals
through information reported. Many civil hearings involving personal
financial information are treated as private in the first instance.
The implications for individual rights to privacy and the proper
functioning of financial cases on divorce deserve much closer
analysis than they have received to date.
26. Resolution understands that Ministers have
not yet decided whether or not to commence the relevant provisions
of the Act. We consider that there needs to be careful consideration
of the consequences for families and children and the financial
implications of the new legislation before the making of any final
decision.
September 2010
| 
