Operation of the Family Courts - Justice Committee Contents

Written evidence from Resolution (FC 30)


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

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