I registered for the latest Family Justice Council open meeting to find out what was going on, and to ask about the long-promised guidance on covert recording. The covert recording guidance turned out to be on the agenda. But the meeting was generally teeming with news of things recently done and things underway, in areas of importance for families right now, from alienation allegations to child treatment decisions.
The Family Justice Council (FJC) works through cross disciplinary sub-committees to promote inter-disciplinary perspectives and to hold the system to account. It acts as critical friend to the Family Justice Board which is Ministerially led (for now*); compiles guidance; responds to government consultations and Parliamentary committee calls-for-evidence; and hosts events like the annual debate (open to the public) and FJC annual conference with Bridget Lindley Memorial Lecture (speeches can be viewed here).
I’ll link to the published minutes when I see them. The focus below is on what’s in the pipeline (rather than the other information provided on the FJC remit, previous guidance etc).
The Working Groups
There are six working groups listed on the website here right now but updates were given from, I think, at least two newer Working Groups not yet on the website (Responding to allegations of alienating behaviour and Financial Remedies). Two more Working Groups were also initiated at last Monday’s meeting to start work in the arena of child treatment decisions/medical mediation and on the FJC website layout. The Capacity Assessment of Children (to directly instruct their lawyer) Working Group, still on the website for now, has already delivered on its guidance at least, with publication of the April 2022, Assessing Child Competence to Instruct Solicitors. So I think that’s at least nine live Working Groups, six of which are working toward comprehensive inter disciplinary best practice guidance, to promote consistency and best practice.
Guidance in the pipeline (based on the Working Group updates)
Covert Recording
I’ll start here. We were told that this long-awaited guidance was delayed by the pandemic but a final draft has now been received on 4 July and will go to council members for their comments by Monday 11 July, before wider stakeholders for their comment by mid-September, with the Working Group presenting the final version for publication to the next FJC meeting on 24 October 2022. The aim, according to the website, is not just best practice guidance but promoting overt and accurate recording of professional interactions. Dr Jaime Craig flagged a specific piece of work also required to feed back to the Young People’s Family Justice Board (YPFJB) in response to their input.
How the Family Court treats domestic abuse
Rosemary Hunter who chairs this Working Group updated. She said the group haven’t yet been able to finalise the intended comprehensive best practice guidance for all family court applications, to support a better and more consistent approach, due to the steady stream of (welcome) new initiatives, with more imminent. The remit of the Working Group has now expanded to keeping the guidance etc under long term review for the FJC.
Experts
This working group, chaired by Mr Justice Williams, is implementing recommendations from the President’s working group and 2020 report. It was set up to tackle the critical shortage of medical experts in the family courts and has numerous sub-groups and a dedicated page at the FJC site. It’s not working towards guidance but publishes progress updates. The website describes a current working group remit to promote the work of both medical and health experts. Fiona Straw, consultant paediatrician, updated – explaining that the critical shortage of experts applies to most health professionals; flagging a work stream tackling experts pay and training which included learning from the North of England where experts are released by the Trust and paid; and bringing news of a second national experts symposium in Birmingham in mid-October.
Responding to alienating behaviour allegations
This seemed to be a new working group not yet on the website. Dr Jaime Craig (co- chair with HHJ Venables) updated, acknowledging the challenges the area poses, including media coverage, but its importance as a complex area for the FJC to tackle. The working group is developing highly practical (flow chart style) guidance. They’re drawing on existing work including at Cafcass and Cafcass Cymru, with Jenny Beck’s input instrumental. They are aiming for draft guidance in January 2023. In the meantime joint RCPCH and FJC Interim Guidance in relation to expert witnesses in cases where there are allegations of alienating behaviours – conflict of interest, was updated in May 2022.
Death by Suicide within Family Proceedings: Awareness and support
Collette Dutton, Director of Children’s Services at Wigan updated from a Working Group headed by HHJ Probyn. They propose draft guidance by autumn. The focus of this update was a review of existing specialist resources for effective signposting, and a survey of the experiences of professionals in the FJC. Dr Jaime Craig suggested keeping the issue of how the guidance can be useful to families on the agenda going forwards.
Medical Mediation etc
A proposal from Melanie Carew (member of the FJC executive board and legal adviser to Cafcass) for a Working Group on promoting use of medical mediation more often and effectively in difficult child medical treatment cases was taken forward. We heard that the RCPCH has expressed an interest in co-working with the FJC though can’t yet commit, so the plan is for the working group to get started in anticipation of the RCPH coming on board later. Their aim is practical, wrap around best practice guidance for parents and practitioners in these cases that are rare but of critical importance. They’ll start by reviewing existing rules, cases to date, such published guidance and best practice as exists, and RCPH materials. The President strongly endorsed the need with reference to the forthcoming judgment from the Court of Appeal following Archie Battersbee’s parents’ appeal.
Financial Remedies
Not currently listed at the website, this Working Group is headed by Mr Justice Peel and will update the 2018 Guidance on Financial Needs on Divorce and the 2016 Guide to sorting finances on divorce.
Update from the Family Justice Board and a radical thought from the President*)
MOJ civil servant, Neil Barcoe is on the board of the FJC and sits on the Family Justice Board. He’s provided continuity and engagement over a sustained period and shared some agenda items from the last FJB meeting on 20 June 2022: FJS priorities including the back log; Josh McAllister on justice system elements of the Care Review eg. earlier engagement of families, transparency in the system and re-vitalising local Family Justice Boards; responses to the national panel review recommendations on the deaths of Star and Arthur; and the latest MOJ (enthusiastic) thinking on strengthening mediation in private law. The FJB board minutes will eventually be published here.
Interestingly Sir Andrew McFarlane disclosed a suggestion last week to the House of Lords committee (when giving evidence on the Children and Families Act 2014/Norgrove reforms) that it may be time for an Independent Chair for the Family Justice Board. The FJB is currently co-chaired by the Ministers for Justice and for Children. Irrespective of competence and good will, the President noted that he is now on his fourth Justice Minister and fifth Children’s Minister which makes it hard for the FJB to really be as effective as it could be.
Research Update
This looks like a standing item in Rosemary Hunter’s brief. She highlighted research published in the last 3 months with council members selecting the following for a more detailed update to follow: the DfE commissioned Supporting Families After Care Proceedings (Supervision Orders and Beyond); the DWP commissioned, Reducing Parental Conflict Programme Evaluation: Third Report on Implementation ; and the NFJO What do we know about Ethnic Diversity in the Family Justice System in England. (Other research mentioned included the Parents, Families and Allies Network Research, Children’s Social Care: The Way Forward and the Safe Lives reports on Family Lawyers understanding of domestic abuse and Domestic abuse survivors experiences of family lawyers).
The next FJC Debate
Ideas were mooted including via the chat bar eg. the Financial Remedies Court; whether parents should have to seek permission before applying to the family court; the gendered nature of the FJS; case file access for children in private law as well as public; whether private law proceedings get the same priority / should, etc.
The private law Pathfinder Pilots
It was interesting to hear that a move away from adversarial language is being piloted, with training for judges from those who did the judicial FDAC training. It will be interesting too, to see what piloting both a less adversarial approach for all cases and safer practice in cases involving allegations of domestic abuse is boiling down to in practice within the pilots alongside this welcome change of language.
Comment
The level of inter disciplinary collaboration and industry was for most part heartening, and stood out against the disarray we face at national governance level. Also encouraging was the appetite for open meetings reflected in the take up. I found myself wondering why the FJC wouldn’t want to hold all their meetings in public. Cafcass seem to have now decided on this for all their board meetings in the new era of transparency the President is ushering in. The new medical mediation group and the President’s proposal for someone other than a series of revolving door ministers to chair the FJB were positively inspiring.
The FJC has always strived to operate in the most challenging, and difficult arenas for family justice and have led with their annual debates in that regard. On Monday they emphasised a wish to be even more of a listening organisation and said that whilst they can’t respond to everything they are open to ideas from the public and professionals on new areas for Working Groups: fjc@justice.gov.uk
The commitment to finalising on covert recording; the decision to extend the remit of the domestic abuse working group and create a new working group to look at allegations of alienating behaviours; and the new medical mediation strand are all good news for families and professionals.
I’d love to see a standing inter disciplinary Working Group promoting early stage systemic work to make fairness and proportionality in adoption decisions as real as possible at the end point of judicial decision making. (From early permanence measures (including but not limited to adoption), to timely therapy, and FDAC for domestic abuse care cases etc).
I wonder too, if the FJC plans for increasing engagement further might lead to the big issues emerging on the ground reaching working group measures before snow-balling through activism and political and media campaigns.
The next meeting is 24 October 2022.
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