We are still waiting for the Ministry of Justice research on the settlement conference pilot. I think we’re two years overdue on the publication of the research into the impact of the legal aid cuts, so I shall not hold my breath on that research.
The Association of Lawyers for Children, have done their own research, conducted by Dr Julia Brophy. To be fair, I will caveat the research with these three propositions
- The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
- The research is what we call ‘qualitative’ – as in it is asking people for their experiences, rather than the mooted MOJ research which has access to Court statistics and can say how many Settlement Conferences happened, how many achieved an agreed outcome, what the cost savings of not going on to final hearing were and time savings for decisions for children versus the ones that didn’t, and just built in an extra hearing
- The sample size of 19 respondents is small (and as the research says, was self-selecting, in that it was people who responded to the ALC’s request for volunteers, so perhaps that tends to select those who are unhappy rather than those who were happy)
(The fire-eating Court, in the title, is a callback to my blog about the risible conference where The Powers That Might Be Giants tried to placate legitimate concerns about Settlement Conferences with fluffy responses telling us we were all just silly)
I’ll give my own caveat for this post – I was extremely dubious about Settlement Conferences and my own Courts have been a pilot. I remain very dubious that a national roll-out would be advisable – but I’ve had some positive experiences of Settlement Conferences, as well as one that was sadly ghastly and ended with people in tears. My own experiences would be more positive than the sample size in this research (but even then, I’d say that just like FDAC it is the skill and approach of the individual Judge rather than the idea and philosophy itself that makes the difference between success and failure.) I have certainly not observed the judicial pressure spoken of in the research, but have been told about it by lawyers in other parts of the country and I know it happens.
The ALC research, even with those caveats is damning. In every regard
Some of the things that really struck me
The Protocol Principles (2016) were not applied consistently by judges. Variation in approaches
covered the delivery of a preamble, attention to consent during the procedure, pressure on
parties and advocates, and approaches to the involvement of advocates.
Very few judges made explicit their criteria for selecting cases; almost all respondents (17/19)
did not know how or why their case(s) had been selected. In one court all cases were selected,
in others, respondents thought selection was random or idiosyncratic.
Some respondents (8/19) had not observed imposition of the procedure on parties but there
were concerns that once a judge presented the procedure as ‘routine’/the ‘norm’, it becomes
very hard to resist.
Similar numbers (7/19) reported the procedure had been imposed on a party. Examples
included parents with limited capacity, some who did not really understand the proposal and
some reported as bewildered by the procedure
A small number of judges were variously described as brutal, harsh, blunt and insensitive with
parents, with the latter effectively backed into a corner.
A minority of judges were described as not exerting pressure on parents to concede an order;
most however applied some pressure: it could be direct and forceful – or it could be subtle but
potentially disarming – or it could be both.
Some parents were unhappy about the approach of some judges in trying to persuade them
to agree to an order; some left the court in distress, some reported feeling bullied, threatened,
intimidated and coerced.
Overall, 5/19 respondents experienced at least one procedure where it had not been possible
or it was difficult to give a client advice during the procedure
The picture is mixed; very few respondents (2/19) said unreservedly, the procedure was fair;
5/19 respondents said it had not been fair.
Many (8/19) had mixed experiences; it had been fair in some cases but not in others. A small
number (3/19) said while procedures were fair ‘in the main’, there were pockets of concern
and thus caveats.
Overall, most advocates said a properly conducted IRH could have reached the same result but
restrictions on the time allocated to the IRH mean it is now largely ‘administrative’ with little/
no time for judicially led discussion, negotiation and party reflection.
There has been little discussion or analysis of issues of power and due process implications29 when
a judge bypasses an advocate and negotiates directly with a vulnerable parent about complex and
difficult issues, some of which may be issues of evidence30. For some parents who are subject to public
law proceedings, issues of ‘learned helplessness’ may influence their responses to a judge31. They may
also not fully understand that having agreed to try the procedure, they nevertheless are free to leave at any point; they may lack courage/not know how to call a halt during what may be an intense, judge led discussion. They are likely to need special preparation where there is a potential for them to agree to an order that results in the permanent removal of a child and which order will not be open to future challenge or appeal.
8 There is little/no evidence of robust research – or proposed research about whether/how parents –
often with profound problems, are prepared for settlement conferences, whether they fully understand and are able to engage in the procedure on equal terms, whether they feel it was fair and what they understand about the benefits of a hearing and due process.
9 It would be naïve to suggest that the impact on parties and parents in particular, of judicial
utterances is negligible – that would be to deny the inherent power held by judges by virtue of their
role and status, and to ignore the profile of parents subject to care proceedings.
For example, one advocate discussed a settlement conference which started exactly like a hearing, the judge then asked the local authority and the guardian to leave the room, the mother and her advocate remaining. Seated beside the mother, the judge told her that her case was “totally unrealistic”. The mother broke down and ran out of court in tears. Her advocate followed to take further instructions.
[10/25] respondents raised concerns about the approach of judges. In one case a judge was described as blunt, insensitive and brutal with parents, conveying their prospects of success harshly, and in circumstances where the dispute was about the proposed adoption of the child. Another advocate compared two completely different approaches:
one judge talking very softly to the parents, explaining patiently and clearly what sort of order he
would make and why; another judge did not consider the parents’ feelings or difficult circumstances in
delivering his view as to likely outcome.
The first judge was described as no less child-focused than the second judge however his delivery was
of a different calibre: calm, patient and respectful, trying to get the parents to focus on the best interest
of the child – albeit his message as to the likely order was “clear and firm”. The second judge’s style
with parents was “quite blunt, and insensitive”. This respondent continued:
“where [a] case concerns placement for adoption, what parent is going to agree to adoption?
But my experience of [this settlement conference] was that it was quite brutal really. [The judge]
conveyed his view on their prospect of success, harshly – and the parent’s advocate wasn’t
impressed with that either. [He] also felt it was insensitive.” [R-2]
This respondent along with others said a lot of parents attending settlement conferences are likely to have learning difficulties or were otherwise highly vulnerable, and it was a cause for concern:
“It feels unfair that quite often they’re being encouraged to settle [although that is not their
instructions…] and if they don’t want to settle they have right to hearing …notwithstanding [any
advice as to] likely success. So, I find it difficult that a lot of the people going to these settlement
conferences and settling are parents who have learning difficulties [and who] would sometimes
benefit from having their case heard and getting their views, wishes, feelings across…I would say the majority of cases [I] have dealt [in settlement conferences] concern parents with learning difficulties”. [R-4]
The respondent was asked if he had any ideas for support to mitigate effects for vulnerable parents:
“The difficulty is, the whole process is quite overwhelming for them; a lot of them find meeting
judge, and judge sitting next to them also quite overwhelming. It seems that sometimes the
procedure results in [an agreed order] because the parent is sometimes just completely taken
aback by it.” [R-4]
A minority of respondents [4/19] said in their case(s) the settlement conference judge had not applied any pressure on parties
One respondent spoke of a case in which a mother had been strongly encouraged to accept the LA plan at a Settlement Conference, did not do so, and then at final hearing secured the child living with them. That’s just a horrible thought, that if the mother had been less able to stand firm, she would have lost her child when testing the evidence the right thing was for the child to be with her.
Overall, nine respondents reported settlement conferences where clients complained about the
approach and behaviour of a judge: some expressed it at the time, for example, by leaving the court, some complained to their advocates about feeling bullied, coerced, intimidated, cornered, and not listened to by the judge.
One parent said bullying by the judge was aimed at getting him to “cave in”. Some of these
experiences were confirmed by advocates. For example, in one case where a parent reported being
bullied by the judge, the respondent concurred with the client’s appraisal of the judge: ‘it had felt quite abusive at times’ [R-16].
About a third of advocates were not confident of continuous consent from their client; too
much pressure was exerted by judges and indications of distress and other signs of client
anxiety were not picked up by the judge as indicating, at least, a need to revisit ‘consent’ or
as indicating consent was effectively being withdrawn/the procedure should stop.
Just two respondents (2/19) had no concerns about fairness in the procedures they attended
As I said, even with all of the caveats, this is a damning report.
So I expect the MOJ report, when it arrives, to focus on savings and roll it out nationally.