The new CAP for private law work – will it fit and do we want to wear it?

Following the flood of recent information and directives in relation to the public law outline (PLO), it was only a matter of time before the President turned his attention to the system of private law children work.  With the 8th View from the President’s Chambers he has done just that, and is inviting comments and views on the latest proposals for reform.  These have been produced following the work done by Mr Justice Cobb and his private law working group (PLWG) who have been looking at these issues since September and have now produced a report.

The new framework proposed by the PLWG will be known as the child arrangements programme (CAP) and aims, among other things, to ‘prioritise the most pressing demands on private law dispute resolution’ and to ‘preserve and build on the aspects of the existing procedure which are believed to work well.’

The draft CAP document aims to act as a ‘one-stop shop’ to explain the entire process in a clear and accessible way, recognising that this area of dispute is used by very large numbers of litigants in person.

Alternatives to the court system

So, what are the key features of CAP and does it achieve its aims?

  • it is anticipated that parents will be channelled to mediation information meetings (MIAMs) and alternative dispute resolution methods wherever possible
  • there is clear recognition within the PLWG report that the current information available for separating parents is fragmented and not easily accessible - the report notes that the government app sortingoutseparation.org.uk is not at all widely used and recommends ‘urgent’ action on giving parents better information and signposting them properly to encourage them to actually attend MIAMs (paras 17–25 PWLG report and para 3 CAP)
  • the CAP reflects that MIAMs are expected to become compulsory and there are three points at which it is clear that no further progress will be possible unless the applicant can demonstrate that the MIAM attendance requirement has been fulfilled or an exemption granted:
    • at the point of submission of the C100 (para 5.3 CAP)
    • at the allocation/gatekeeping stage (para 6.4.1 CAP)
    • at the first directions hearing appointment (FDHRA) (para 11.12 CAP)

The court is also expected to keep the option of alternative dispute resolution alive at all stages, with the possibility for adjournments during the process, for parties to attend mediation

Allocation and continuity

Draft guidance on allocation and gatekeeping has been published along with its associated schedule. Key points include:

  • the vast majority of private law applications are expected to be dealt with by district judges and magistrates (para 45 PLWG report)
  • ‘gatekeeping teams’ will be set up to carry out the allocation exercise and they will consider and allocate applications within one working day of receipt (para 6 CAP)
  • safeguarding information from CAFCASS will not be available at this early stage, so FDHRAs should be listed with parallel lists of magistrates and district judges so that if allocation decisions need to be reviewed, this can happen quickly - some monitoring of this will take place to see whether, in practice, it is workable to have the allocation decision taken at such an early stage, with such minimal information, and if large numbers of re-allocations are taking place, a review is anticipated (para 50 PLWG report)

Draft guidance on continuity and deployment (private law) has been issued. Key points are:

  • legal advisors and judges are expected to ‘fit their availability around the case, not the other way round’ (para 10 of guidance) and will be expected to maintain continuity wherever possible
  • hearings should not be concluded without specific dates being communicated to parties at court to help ensure that all parties comply with these continuity requirements

Timescales for proceedings

The draft flowchart for the CAP has been published. Key points are:

  • the timetable under CAP is expected to be ‘tight’ (five to six weeks from the issue of an application to FDHRA, at which it is anticipated many cases will be finished and resolved) although the PLWG has stopped short of recommending any overall limit on the timetable
  • the CAP anticipates a need for compliance by external agencies to help meet timetable expectations, for example, the electronic submission of information by the courts service to CAFCASS on the day the application is issued, and cooperation from local authorities and the police will be necessary to help complete safeguarding enquiries (paras 58/59 PLWG report)
  • it is expected that there will be a greatly reduced need for section 7 welfare reports by CAFCASS - if such reports are ordered, they are expected to be focused and directed specifically towards the real issues at stake (para 11.12.16 CAP) but although this should mean some saving in CAFCASS time the increase in applications and litigants in person, as well as the need for their attendance at FDHRAs at court on a regular basis, is still likely to mean their resources will remain stretched

Review and monitoring of orders made

An important new feature of the CAP is the emphasis on the resolution of disputes without the need for ‘reviews’ by the court. In order to meet ‘the perceived tendency of litigants to become dependent on the court process to regulate/determine aspects of the children’s lives’ (para 13 PLWG report) review hearings will not be ordered, unless necessary, in the child’s best interests, and for a clear purpose (para 14 CAP).
Any section 7 reports or section 37 reports by local authorities should set out proposals for medium and longer term plans, to help end the need for review hearings by the court.

The move away from review hearings is understandable when trying to reduce delay and to encourage parties to resolve disputes themselves.  However, parties do not always respond to ‘encouragement’ and it is suggested that such hearings currently provide a very helpful alternative to enforcement proceedings and help to ensure compliance with contact orders, for example, in cases involving parents who are hostile to contact.  Similarly in cases where contact is, for example, being reintroduced after a delay, then it can be envisaged that CAFCASS recommendations might not be able to entirely predict how matters will move on and the lack of a review hearing has the potential to mean matters conclude too quickly and contact could break down.

CAP envisages that where monitoring of orders is required, the only methods by which this should be done are under section 11H of the Children Act 1989 (ChA 1989) (CAFCASS monitoring) or the making of a family assistance order under ChA 1989, s 16

However, the requirements for the making of a family assistance order may not be satisfied in every case, and both options place further burdens on local authorities and CAFCASS.  Also, if CAFCASS are monitoring cases and there are problems, the outcome currently is a review by the court, so would it not simply be appropriate in such a case to allow the court to order a review hearing rather than adding the extra layer of CAFCASS monitoring?  It will remain to be seen in individual cases, just how ‘necessary’ a review hearing needs to be before a district judge can be persuaded to order it.

Outstanding matters on which more work is needed

The PLWG made it clear that there are several areas where more work is needed to complete the CAP and make it effective, such as:

  • proposals on enforcement are not yet finalised and the report authors wish for more judicial guidance on the enforcement provisions of ChA 1989 and the question of the use of shifting of care in child arrangement orders - they also wish to await the full report of the research of Professor Trinder et al into the enforcement of contact orders before making recommendations (paras 107/108 PLWG report)
  • more specific training for judges is needed to help deal with litigants in person and the inquisitorial nature of proceedings in which they are involved
  • communications from courts need to be improved to make them usable by litigants in person (para 90 PLWG report) and the misuse of without notice applications was identified as a key area where clearer information could be given to litigants in person to enable them to understand their proper function
  • a proposal that in the event that a FHDRA does not resolve matters, there should be an electronic generation of orders with standard witness statement templates attached - templates are yet to be drafted but this seems like a very sensible proposal (para 84 PLWG report)
  • finally, the PLWG outlined real concern within the system over cases where judges deem expert reports (eg. into matters such as drug / alcohol testing or mental health) to be ‘necessary’ under the Family Procedure Rules 2010, 25.1 and yet there is no funding available for them - the report notes that ‘judges should be enabled to have such evidence in order to discharge their statutory responsibilities’ (para 81 PLWG report) but it is not at all clear how that is to happen

Summary

It does seem that while the structure of the draft CAP is clearly written, and it contains many good ideas to try and streamline/speed up the system, there remains much to be done to actually implement the CAP and make it work. The timescale for implementation of the proposals is likely to be short and judicial training, rewriting of information, and court documentation for litigants in person simply cannot be achieved overnight particularly as no funding is likely to be available to speed matters up or even ensure it happens at all.

More importantly, there are already significant issues with changing parents’ culture to encourage them to utilise mediation services and it is hard to see how this will change over any short timescale either.  Since there is no scope under CAP for people to do anything other than attend the MIAM, it is easy to see the potential for that to become a ‘box ticking’ exercise with litigants in person not fully engaging with the mediation process and simply returning to an overstretched court system.

It is of concern too, that the CAP may well ultimately prove to be too short a process to take account of people who are often simply not yet in a position, emotionally, to be able to work with the ex-partner to resolve disputes over children by agreement.  The lack of legal aid and lawyers to assist them in reaching that point is only likely to make matters more difficult.  It remains to be seen whether any of the recommendations in relation to enforcement will help matters, but it is highly unlikely, as it would be imagined that they would be designed to ensure that court orders are more fully complied with.  The overall feeling remains that there could well be many emotional, distressed parents, being rushed through a very overstretched system, to come out at the end of it with an order that potentially will not be adhered to, and with no greater tools or understanding of how to actually ensure that the disputes over their children and the arrangements for them are agreed in future.

The other alternative is that the whole system could just grind to a halt – which is the other real fear that is in danger of happening currently.  Given the tone of the President’s ‘Views’ so far, however, it is anticipated that this option will simply not be countenanced.  Even with a lack of funding, training, information and resources, and with potentially huge numbers of litigants in person flooding the system the new system will be expected to be implemented, and to be made to work (somehow…) In view of all of this, perhaps in the coming months professionals and the judiciary within the family justice system might feel that a tin helmet would be more useful than a CAP?

The President has invited comments on the proposals, to be sent to joanna.wilkinson@judiciary.gsi.gov.uk and nicola.massally@judiciary.gsi.gov.uk by 2 December 2013, for  the draft guidance on allocation and gatekeeping, and the remaining proposals by 6 January 2014.

Lorna Borthwick is a barrister at Cornwall Street Chambers

Twitter: @Lorna_Borthwick

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