On 22 July 2024 the Family Justice Council held its annual open meeting. We attended to see what we could see.
In order to attend we had to apply in advance by a stated deadline. Questions were permitted but had to be asked in advance, by completing a web form, which limited each proposed attendee to one question. Shortly before the big day, we received a link, so we were in. It came accompanied with instructions not to record, and an explanation that we would be muted and the chat function disabled. Tightly controlled. Accompanying the link was an agenda and an explanation of what the Family Justice Council is and how it operates.
That information pack reminded us that (perhaps surprisingly) the FJC meets as a full committee only four times a year (this was one of those four meetings), and much of the work is done in subcommittees. The minutes of the main meetings are published, but often after considerable delay, and as far as we can tell subcommittee minutes are not generally published. This makes it difficult to know what is going on at the FJC at any given time.
Our question for the meeting (a cheekily composite one) was about the various heralded guidance documents (parental alienation and covert recording in particular, the latter of which has been on the desk of the FJC since 2016) and when we night see them in the wild, and in particular about the recently announced Suspected Inflicted Head Injury Service (SIHIS) Pilot.
The meeting itself was around two hours long and attended remotely by about 70 people, including committee members. In places it was slightly difficult to follow because the discussion between committee members referred to papers which observers didn’t have (a bit like when we attend a court hearing and don’t have access to the case summary or position statements).
There was a short window at the end during which a selection of the various questions were answered – in fact, rather than specific questions being read out or the questioner identified, the committee had identified recurring themes and read out largely pre-scripted responses to the issues raised. Most of these were read out by the chair Mr Justice Keehan, and had the sense of having been very carefully worded, in particular the one about the SIHIS pilot, which has attracted some controversy.
Answers to our questions for the FJC
Here are the answers to our questions that we gleaned during the course of hte meeting and the end session:
- The ‘hope’ is that the parental alienation guidance will now be published in the autumn.
- The covert recording guidance is undergoing final typographical checks and is expected to be published early in the new legal term (that probably means September).
- As for SIHIS, our note of the response read by Mr Justice Keehan is as follows (not verbatim):
We have had several questions from practitioners about the Suspected Inflicted Head Injury Service Pilot, which started in April, including the role of the FJC in it’s creation, whether there has been consultation with stakeholders and how the pilot sites were selected etc.
We have received the following from the DfE team leading the pilot:
aims and scope – planned to run till 31 mar 25
…wide range issues impacting on multiple deptartments. supported by DfE, DHSC and MoJ and delivered by NHS trusts. It is not a legal pilot it is clinical. It does not change the legal process, impact on protections children are entitled to or replace part 25 experts. The pilot aims to provide earlier assessment of children by more experienced senior clinicians at an initial stage when a child is flagged as suspected inflicted head injury / trauma by a trust rather than later in the process. One clinical report which does not replace the multiple clinical reports the judiciary already receive, but clinical information in a single report in a clear, more organised format. Aiming to improve organisation and efficiency of processes that already occur in the NHS. Current ? system ? creates potential delay later in proceedings and creates unnecessary confusion leading to further potential part 25 experts being instructed at a later stage.
The role of the FJC –
1 In July 2019 at symposium in London a discussion about how changes to how healthcare commissioned could influence the way clinicians make the transition to becoming experts.
2 several raised the question of a funding shift of how dealt with in NHS
3 The FJC established the experts committee, subgroups were established to convert the working group report into action
4 One subgroup was Commissioners and NHS trusts – looked at how commissioning might be improved to support experts. Discussed physical injury pilot at another symposium in 2022.
5 DfE attended that symposium and took forward the idea for a suspected physical injury in children to be piloted, aiming to produce better qualified clinical reports to reduce the need for as many expert reports in family justice system, widening pool of who part 25 can be obtained where neccessary, enabling clinicians to develop greater familiarity with court process and social care.
Who is involved? Clinicians are already employed by the trusts who bid for funding to deliver the pilot.
An independent evaluator has been appointed to evaluate all 3 pilots all as part of the Reducing Family Court Delay Shared Outcome Scheme.
Information sharing – DfE with FJC secretariat provided info to stakeholders, incl trusts, judiciary and ? local practitioners. We were due to share ?more widely? when the election was called and purdah. In interim an information document was published. A broadcast is planned on 25 July hosted by DfE, which will answer questions from practitioners.
The President then interjected in an apparently more unscripted way:
This is a genuine pilot, a brand new idea. It is being tried out to see what pros and cons of it are. It’s a pilot of clinical arrangements within the health service and doesn’t impact on the court process itself. The aim is to see if it is possible to enhance clarity and authority of clinical evaluation at the time of a major potential incident rather than that being worked out through the court process at a later stage. The jury is out as to whether it is a good idea or not. I urge people in areas likely to be affected to engage to see if is a good idea, or whether it should be pursued as mainstream concept.
At the President’s request, all attendees were sent the link to the Dept for Education ‘Broadcast’ as a source for further information about the pilot.
The SIHIS broadcast
That took place on 25 July and, true to its name, was very much one way and every bit as tightly controlled as the FJC one. Over 300 people attended this meeting, perhaps because the link had been made generally available in advance and had been circulated by legal professional bodies such as the FLBA (Family Law Bar Association).
Although the event was billed as an opportunity for professionals to get their questions answered, most of the questions asked via the chat box (of which there were many) went unanswered because ‘we’ve run out of time’. Only a very few minutes were afforded for questions, and it was not at all clear why the meeting had to stop on the dot of the hour, leaving many questions unresolved. Most of these questions were about how the reports from the SIHIS pilot would be treated, or how they might be challenged on behalf of parents, once they had been produced. The upshot is that some reassurance was offered as to why there had not been consultation with family justice professionals at the point of design: in summary, the pilot is a clinical pilot not a legal one, and doesn’t actually change anything about how the family justice process operates – but little clarification as to what will happen once the report finds its way in to the family justice system. No doubt, the answers to those questions will become clear over coming months as more cases enter the pilot, and more reports find their way through to judges.
Other questions and answers from the FJC
Other questions asked and responded to at the FJC meeting were as follows
- Alienation guidance – dealt with above, though the answer explained that the committee dealing with this had been ploughing through a vast number of responses (over 90) to the consultation last year, and the committee had been incorporating that feedback into a revised draft, which appears to be still a work in progress. Whereas the estimated publication date for the covert recording guidance seemed relatively clear, the references to publication of this document were notably more aspirational than fixed promised dates.
- Regulation of experts – it was noted that the government had referred this issue to the FPRC. The meeting was told that this was accepted by the Rules Committee earlier this year and the work had been delegated to a workstream to consider proposals as to how to address regulation of experts – not just relating to alienating behaviours but more widely. They will be reporting back to the Rule committee in October with the progress they’ve made so far and recommendations. It is unlikely that any new rules can be signed off before the end of the year / early 2025, and any rule changes need to await a Statutory Instrument as a vehicle to give effect to the recommendations (there is usually a Family Procedure Rules (Amendment) SI in April each year. This was an interesting piece of information to hear, because we’ve been checking the minutes of the Rule Committee and hadn’t been able to work out what had happened after the government referred this to the Rule Committee – it looked as if the request for them to deal with it had been ignored or declined, so we will now keep an eye on the Rule Committee minutes for progress.
- The Pathfinder pilot – early indications were said to be positive, with initial feedback suggesting the Child Impact Report is a key part of the model, and helps focus on needs of child, allowing the court and parties to focus on the core issues for the child and welfare rather than the wider dispute between the parents. Closer relationships with local DA agencies has increased access to support and brought an improved understanding of DA earlier into proceedings. The pilot was extended to South East Wales and Birmingham in April and May respectively to test it in larger court areas. A formal evaluation is underway – the first stage evaluation is expected to be published in the autumn, and the second stage (which captures the experience of children and families) is underway.
- Alternatives to fact finding hearings in domestic abuse cases – the response referred to the Pathfinder pilot, which has just been rolled out to two more court centres, as one alternative.
- [update, thanks to a reminder from a reader of this post, who had also attended the meeting: there was also a question about the lack of welsh speaking mediators in wales – some reassurance was offered that the FMC were attempting to remedy this gap in services.]
Overall, these meetings provided a modicum of openness, but far from complete transparency.
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