Following on from our post summarising the key recommendations from Mr Justice Keehan’s Public Law Working Group which can be found here, we now turn our attention to the issue of private law.

The Child Arrangements Programme (the ‘CAP’) was introduced as a Practice Direction (to complement Part 12 of the Family Procedure Rules 2010: PD12B) on 22 April 2014, replacing its predecessor, the ‘Private Law Programme’. This private law initiative, commissioned by the then President of the Family Division, Sir James Munby P, coincided with the creation of the single Family Court.

Mr Justice Cobb

Five years since the launch of the CAP, and after a Review was commissioned by Sir Andrew Macfarlane in late 2018, it is generally agreed that whilst some aspects are working well, others are not. The vast numbers of Litigants in Person (LiPs) were underestimated at the outset, and this is adding delay to cases which need further judicial oversight. This interim report is keen to try to find ways to resolve issues outside of court, which has been found to be better for children and their families and thus the “Family Solutions” dispute resolution service is discussed. You can find further information by reading the whole document here.

As with the Public Law Working Group, the Private Law Working Group would welcome comments and feedback from professionals and members of the public. You can add your voice to the Consultation process here.

Private Law

Core recommendations

1. Consideration should be given to ensuring that the most effective range of out-of-court family resolution services are available to support those experiencing family breakdown in England and Wales, drawing on the wealth of existing research and experience in this area, both domestically and internationally. A national non-court dispute resolution (‘Family Solutions’) service should be actively considered. This is particularly pressing given the volume of cases currently passing through the courts.

Voice of the child
2. Any future pilots agreed as an outcome to this work of the Private Law Working Group should include best practice methods for obtaining and including the views of children as a key standard component.

Non-Court Dispute Resolution (NCDR) and the creation of the Supporting Separating Families Alliance
3. Local Family Justice Boards should take responsibility for forming local alliances of services (or developing existing alliances) to provide integrated support for all families experiencing separation.

4. The alliances of services should be given the working title for present purposes of the ‘Supporting Separating Families Alliance’ (SSFA).

5. The local SSFA alliances will be managed by a co-coordinating committee which could or should be chaired by the chair of the Local Family Justice Board or a nominated representative. Additionally, in due course, thought may be given to appointing a single operational co-coordinator of each SSFA.

6. The outline frameworks and principles for local alliance(s) or an alliance covering England and Wales should be discussed at an initial scoping event before the end of 2019 – for key partners who would be instrumental in shaping and delivering local alliances, to consider some of the design principles and the options for leadership, coordination and funding at local, regional and national levels.

7. The agencies / partners identified in Annex 6 should be involved or represented in the alliance(s).

Revitalising the MIAM
8. The ‘invitation’ / direction to applicants to attend a MIAM should contain a more encouraging, positive and child-focused message underlining the benefits of NCDR to parents and their children;

9. The quality of the delivery of MIAMs should be more rigorously monitored and consistently maintained.

10. Judges and court staff should be more prepared to enforce the MIAM requirement.

11. Judges and professional participants in the family justice system should be encouraged to re-appraise the value of the MIAM, with a view to promoting their value as a vehicle for considering NCDR across all sectors of the family justice system.

12. With the assistance of the Family Mediation Council, we consider that it would be valuable to conduct a trial by which parenting agreements concluded in mediation become open documents.

13. The formal statement of expectation that Respondents would attend a MIAM (unless an exemption applies) should be reinforced to judges and professionals, underlining the benefits of this activity, whilst confirming that MIAMs can be attended separately and may not be appropriate where domestic abuse is a factor.

14. Courts should automatically order MIAM attendance before the first hearing where this has not happened and no valid exemption has been claimed, and there is no safeguarding issue.

15. ‘Gatekeeping’ will be a slimmed-down activity; the District Judge / Legal Adviser will routinely send the new C100 application for safeguarding enquiries and will otherwise focus on:
a. Whether the case is urgent, (and if so, make appropriate arrangements to list);
b. MIAM compliance (though this should have been done by the court office);
c. Whether specific information from a Local Authority or other third-party agency is required for the purposes of ‘triaging’.
In a returner case, the Gatekeeping judge will be referring the case straight away to the judge or legal adviser previously having dealt with it, without ordering safeguarding checks unless this is otherwise indicated.

16. The revised CAP should spell out the expectations on the police and local authorities and other third parties to provide information to Cafcass/Cymru for their safeguarding enquiry in a timely way.

17. The safeguarding letter will be expanded, and (in addition to safeguarding information) Cafcass/Cymru will include additional recommendations as to:
(i) which track should be considered for the case initially;
(ii) next steps / options within the track,
(iii) whether the court should direct activities to move parties towards conciliation –SPIP or referral to a SSFA service,
(iv) the need for a section 7 report (and whether LA needs to be involved);
(v) whether to consider fact finding.

18. Private law applications should be placed on ‘tracks’, with the objective of moving cases through the court system more effectively. We propose that a regime similar to the ‘fast-track’ / ‘multi-track’ trial system in the civil jurisdiction should be adopted and adapted; each track will offer a range of options:
Track 1 will be for the simpler cases without safeguarding issues;
Track 2 will be for the more complex cases (often with safeguarding issues);
Track 3 will be for ‘returner’ cases.
Cases may move between tracks depending as they develop.

SPIPs/WT4C (early section 11A direction)
19. ‘Triaging’ Judges will actively consider the use of section 11A Children Act 1989 to order SPIPs / WT4Cs at this stage, where it is safe so to order, before the parents come to court.

20. The ‘triaging’ of cases (when the ‘triage’ judge determines the ‘track’ for the case and any further case management options) should be undertaken at about 4 – 6 weeks after issue.

Judge-led conciliation
21. Those cases which stand a real prospect of resolving through conciliation should be listed for conciliation, and those which need a judicial determination should advance straight through a case management process; the automatic FHDRA for all cases in the current CAP will be removed.

22. We recommend that these hearings be known as ‘Conciliation Appointments’ or where there is scope for conciliation and case management, the case will be listed for ‘Conciliation and Case Management Appointments (CCMA)’.

23. We recommend that proper time be given in court lists for Judge-led or Cafcass/Cymru-led conciliation in the right case at the right time (conciliation may not be a one-off activity).

24. We would support the wider roll-out of ‘at court’ mediation; we consider this is realistic particularly at the larger court centres.

Returner cases / enforcement
25. We recommend that the C79 is taken out of circulation, and that all applications which would otherwise have been made on a C79 (applications for ‘enforcement’) are made on a C100.

26. The revised C100 should contain specific enforcement questions; further questions around enforcement of a previously made order should also be included in the form.

27. At gatekeeping, the judge (or legal adviser, where appropriate) decides the timing of a hearing, with the primary objective of placing the parties back in front of the same judge/magistrate/legal adviser (where possible) who heard the previous case as soon as possible and ideally within 10-15 days.

28. Fresh or new safeguarding checks will not generally be ordered at gatekeeping in a returner case.

29. We recommend that the HMCTS Reform team remain closely involved in this Private Law Working Group’s work so that:
(i) digitisation of private law processes (the process of making an application and the form on which it is made) can be crafted to enhance the messages (including the desirability of non-court dispute resolution) of the reforms proposed
(ii) orders can be more flexibly and easily created in a form which will be easier for all litigants to understand
(iii) back-office work is more efficient rendering the processes quicker.

30. Subject to the outcome of any consultation on these proposals, we would like to recommend that some or all of the initiatives set out above should be piloted, and the result thoroughly evaluated, before commitments are made as to wider roll-out and rule-change.

We’d welcome your thoughts and comments on this interim report.