Back in July 2017 the Ministry of Justice (‘MoJ’) issued guidance in relation to the piloting of ‘settlement conferences’ in children cases. Settlement conferences are/were another idea to help resolve children disputes. As the guidance explained:
“In a settlement conference, a family judge adopts an inquisitorial approach in order to encourage cooperation between parties with a view to helping them identify solutions and reaching an agreement that is in their children’s best interests.”
It went on:
“Settlement conferences take place with the consent of all the parties. The judge hearing a settlement conference will be different to that of the judge that may hear the final hearing. They will be specially trained in facilitating settlement conferences.
“The judge will not impose any duress or pressure on any parties. Settlement implies that all parties will be in agreement to fully resolve some or all issues.”
A protocol in relation to the conferences explained that:
“The role of the Settlement Conference is to facilitate discussion of the issues, clarify information, analyse issues and promote understanding between the parties with a view to helping to identify solutions (including solutions which may be addressed by the consent of the parties and not necessarily within the Court process).
“It is the parties and not the Judge who determines whether there is agreement on any of the issues and whether an order will flow following such agreement.”
Settlement Conferences have been tried in both public law and private law disputes (as I understand it, far more in the former), but for the purpose of this post I will concentrate on the latter, i.e. child arrangements cases, as that is what most readers of this blog are likely to be interested in.
Before I go any further I should point out that the procedure for dealing with child arrangement cases already contains two steps that could be confused with settlement conferences. The first step is the First Hearing Dispute Resolution Appointment (‘FHDRA’), which “provides an opportunity for the parties to be helped to an understanding of the issues which divide them, and to reach agreement.” The second step is the Dispute Resolution Appointment (‘DRA’), which is essentially a last effort to see if the case can be resolved without the need for a final hearing. I will come back to these, or at least to the DRA, in a moment.
The Association of Lawyers for Children has just published a report looking at the views and experiences of advocates on practices in 61 settlement conferences in the initial five pilot areas identified by the MoJ. The report was by Dr Julia Brophy, an independent senior researcher in family justice issues. The report’s findings do not support a roll out of the settlement conference procedure in its current form. The reasons for this are complex, but included variations in approach by judges and courts, concerns as to whether the procedure was fair, pressure on lay parties to agree to a suggested order, and the power imbalance between lay parties and the judge, by virtue of the latter’s status and position.
Many of the advocates felt that a similar result could have been obtained by a properly conducted Issues Resolution Hearing (‘IRH’ – the public law equivalent of the DRA), 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. I suspect that something similar can be said for the DRA.
The report concludes by suggesting ways forward, for example to identify appropriate cases (e.g. private law disputes), and develop a procedure with safeguards suited to those cases. Another suggestion (if I read it correctly) is to enhance the IRH, to make it more like a settlement conference. Again, I suspect that the same idea could be applied to the DRA.
All in all, the report may not be a glowing endorsement for settlement conferences, but the pilot was clearly a useful exercise in the continuing search for new and better ways of resolving children disputes, and no doubt we will be seeing more of some of the ideas behind the conferences in the future.
You can read the full report here.
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Author: John Bolch