Legal News

A pilot scheme took place between June and October 2016 in selected courts across the UK, introducing the concept of ‘settlement conferences’ in both public and private law child matters and testing their use and effectiveness over these 5 months.

This was on the back of the use of settlement conferences in children matters already being fully established in Canada, with a reported 95% success rate, and initial indicators from early trials in the UK being very positive, however it has been something which has raised much debate, facing criticism and concern but also receiving some very positive comments.

The concept is simple; a settlement conference being an informal hearing, in essence a Judge-led 'round table' meeting with all parties (and their solicitors) aiming to negotiate a child-centred way forward and, where possible and appropriate, reach agreement avoiding the need for an acrimonious final hearing. In public law cases the Judge (not the trial Judge and one who has no further involvement in the case if a settlement is not reached) asks the local authority to set out the issues and parties’ positions and will then speak directly to the parties to explore their positions and whether there is scope for agreement.

The aim is simple and admirable; a collaborative approach to encourage and facilitate open discussions and questioning of the parties by a specially trained Judge to resolve some or all of the issues by agreement. What is discussed is not admissible in evidence (subject to disclosure rules) and no order or directions can be made unless all parties agree, although final orders, including in adoption or placement order proceedings, can be made if all parties agree. There is no pressure or obligation on any party to agree to anything and if there is no agreement the matter simply proceeds to final hearing as usual, both usually being listed so as to avoid delay if agreement is not reached at the settlement conference.

The President was very much in support of the initiative; indicating in his annual address to the Family Bar Association in April 2016 that he was “hopefully they will become as much day to day practice in children cases as they are in financial matters”.

Whilst I fully agree with the President’s comments that in the current environment and with more litigants in person we need to improve, streamline and simplify the system, the worry is whether what has become an everyday and effective means of resolving disputes in money cases, is appropriately transferrable to and workable and fair in children matters, particularly public law, where the issues are often more complex and emotive.

Indeed, the Association of Lawyers for Children published guidance in July 2016 and raised early concern that the scheme may undermine public confidence in the fairness and transparency of the court process and in a persons’ right to a fair hearing. It also questioned how it was envisaged children be independently represented and their voices heard within these conferences and whether a lawyer’s duty to their client could be compromised by taking part in conferences, given the informality and anticipated presence yet limited-involvement.

The President responded, confirming his view of the ethos of these conferences and how Judges should run them; “not to pressure parties to settle but to explore whether the candour and confidentiality of the process can help to reach common ground.” He was also very clear that when evaluating the pilots he and other members of the judiciary will sit on the Advisory Group and will be looking closely at whether this approach and the use of conferences can be seen to have compromised a persons’ fundamental rights, including to a fair trial, legal representation and Art 6 and 8 rights, or diminished the voice of child in any way.

Full evaluation and the report following the pilot scheme is awaited and I for one am very interested to consider the outcome. These conferences seem to point to a more interactive and perhaps simpler approach, however it remains to be seen whether they really can be a helpful, fair and effective means of resolving public law children matters without the need for a fully contested and acrimonious hearing.

Sophie Burchett is a childcare solicitor in our Shepherd’s Bush office and a member of the Law Society Children Panel. Sophie undertakes a variety of family work, specialising in children matters, both public law and private law. She represents children (both directly and through their children’s guardian) and parents and other extended family members.

Duncan Lewis’ Child Care Law department approaches each case with a level of understanding only achievable through specialising in Child Care law. Whether involving social services, or a private law matter, it is important to be represented by those who understand how the law may affect you and your family. The Duncan Lewis Child Care Law department includes members of the Law Society Children and Family Panel Members. The majority are also members of the Association for the Lawyers for Children, and of Resolution (formerly known as the Solicitors Family Law Association). We have acquired a number of kite-marks which are testament to the quality of the specialised work our staff undertake. We have had several high profile cases which include caste, underage marriages and international elements. To speak to a member of the team on an issue involving childcare, family or any concerns of domestic abuse, forced marriage or hate crime please call our specialist solicitors on 0333 772 0409 who will be happy to help.