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Research by ALC on “Fire-eating Courts” (sorry, “Settlement Conferences”)

 

 

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

 

  1. The ALC were very clear as to their doubts about Settlement Conferences before the pilot was launched
  2. 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
  3. 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)

https://suesspiciousminds.com/2016/12/21/fire-eating-pilot/

 

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

 

http://alc.org.uk/uploads/Settlement_Conference_Research_Report_.pdf

 

 

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.

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Settlement Conferences

Settlement Conferences are a new idea in English (and Welsh) family law, though they have been used in other jurisidictions, including Northern Ireland. The thinking is rather like the Financial Dispute Resolution in ancillary relief – you get all of the evidence together, the parties go in front of a Judge who will NOT be hearing any contested hearing and together as a group they try to see if there is a way of agreeing the case that everyone can live with. If they really can’t agree, everything discussed at that hearing is locked away and isn’t used by anyone at the final hearing which will be before an entirely different Judge and all they will know is that agreement wasn’t reached (they won’t be told what the first Judge suggested or indicated, or who gave ground and who didn’t, or what the sticking points were)

The idea is to settle the case by agreement, instead of having the stressful, time-consuming and (for the State/taxpayer) expensive final hearing.

In a money case, that’s always a live possibility – since going to a final hearing costs each side money (even if they are legally aided, their legal costs have to be paid back at some point out of the money they recover) and you know, money has loads of different ways of being divided and some of those ways can result in each side getting something they are happy with.  In a Children Act case where the social work plan is adoption and the parents want the child home, there’s rather less room for compromise – it’s not easy to come up with a way where everyone leaves happy. So it can feel a bit more like a Settlement Conference is one side being told that they are LIKELY to lose at final hearing and to give up.

 

Sarah Philimore sums it all up very well here

 

Guidance from the Ministry of Justice about ‘Settlement Conferences’

 

The Association of Lawyers for Children have published guidance to their members and it is strong, punchy stuff

 

http://alc.org.uk/uploads/ALC_Guidance_to_Members_on_Settlement_Conferences_July_1st_2016.pdf

 

For example

Care and adoption proceedings are a grave interference in family life by a public authority. They can have consequences for several generations.
We believe the scheme may be in breach of the ECHR Article 6 and 8 rights of both parents and children.
The right of individuals to communicate privately with their legal representatives is a cornerstone of access to justice.
The right to professional advocacy is wholly undermined if lawyers are expected to remain silent.
A child cannot have a fair hearing if his parents have not.

 

and

 

5…. The essential difference between a conventional IRH and the settlement conference lies in the judge seeking directly to persuade the parties to agree
with his or her view of the likely outcome , and expecting the parent or other parties to speak directly to the judge, without the protection of professional
advocacy and legally privileged advice.
6. The judge taking the settlement conference will not be the allocated judge,and therefore the scheme undermines judicial continuity, which has been a central
aim of the family justice system for many years. The settlement conference judge will not have the depth of knowledge and nuance of the case and may
therefore arrive at the wrong conclusion about the merits.
Apart from the issue of further delay, there is a risk, particularly in the smaller court centres, that the judge who deemed the case suitable for a settlement conference will
communicate their disappointment to the trial judge if the conference fails to produce a settlement.
7.Lawyers are to be present at settlement conferences, but they are discouraged from speaking, and therefore their presence provides only a semblance
of legal representation and due process.
The judge may ask a question directly of the lay client which the lawyer objects to, but the client may answer before the objection
can be made. The judge may attempt to restrict the lawyer’s interventions as an undermining of the process.
The passive presence of lawyers will not best serve the parents’ or child’s interests, but will serve to make appeals from “consent” decisions more difficult
to launch. We believe it will be very difficult if not impossible for our members to discharge their overriding professional duty to
promote the interests of their clients in such an environment.
8.The parents in care cases are usually vulnerable and disadvantaged individuals, a disproportionate number of who have learning disabilities and mental
health problems. They find it difficult to articulate their experiences and present their views effectively in a court room setting. They are inevitably under considerable
emotional stress when attending court about their children. Being directly addressed by the judge and expected to reply is likely to be experienced by the
parent as a form of pressure to make concessions, no matter how tactful and skilled the judge may be. The scheme is intended to produce settlement by
bypassing lawyers and using the judge’s authority and personality toproduce concessions. If it were not, it is difficult to see why the settlement
conference should produce a better rate of settlement than a properly conducted IRH.
9.The scheme will seriously undermine public confidence in the fairness and transparency of judicial decision-making in the family courts.Public confidence in the
“secret” family justice system is shaky.
Final decisions for the permanent removal of children from their parents made “by consent”, without parents having the benefit of legal representation and
privileged advice, will be highly suspect.
This will further damage public trust in family justice.
It would be fair to say that there are still some kinks to work out. Shame that there wasn’t a consultation and dialogue before launch of the pilot to let these issues be ventilated. Whilst the pilot only covers a few local authorities, these are real families and real children who are undergoing a pilot scheme to make these life-changing decisions in a way that is critiqued as savagely as this.
Perhaps the pilots should cease whilst the MOJ get round a table with the ALC to discuss things.
I’d say the ALC response is a takedown that Brock Lesnar would be proud of.
Who is Brock Lesnar?
Only The Beast Incarnate, that’s who.
"My client, BRRRROCK Lesnar"

“My client, BRRRROCK Lesnar”