A government review into representation of children in public law cases could lead to lawyers being removed at certain stages in proceedings.
Publishing his latest ‘View from the president’s chambers’, Family Division head Sir James Munby (pictured) said the Ministry of Justice, with his support, is investigating whether there is scope for a reformed level of representation in relation to the ‘tandem’ model, which requires that a child in every care case is represented by a guardian and solicitor.
CAFCASS figures show that, in the 12 months to March this year, there were 12,781 new care cases – up from 11,159 in the previous year. In the four months from April to July this year, there were 4,959 new cases, compared to 4,118 in the same period for 2015.
Munby said the reasons for the increase are ‘little understood’ and being investigated. However, the government and judiciary have to plan on the basis that there will continue to be significant increases.
Munby anticipates that there are unlikely to be any increases in resources, judicial or otherwise.
Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented, Munby said. ‘This does not mean, however, that the practical operation of the tandem model should be immune from scrutiny,’ he added.
In some cases, the solicitor will instruct counsel. Sometimes, in the ‘very heaviest’ cases, two counsel, a junior and a QC will also be instructed.
‘From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team,’ Munby said.
‘But, I emphasise, so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model.’
The ministry will be conducting a data-collection exercise in 12 courts. A second phase, involving the judiciary, will investigate how a reformed model of representation could work in practice.
Meanwhile, the first phase of a pilot into ‘settlement conferences’, which began in May, is due to conclude next month.
Pioneered in Canada, a settlement conference involves a without-prejudice hearing that takes place before a judge with the consent of all the parties involved, to try to resolve some or all of the issues concerned.
Parties attend with their legal representative (where instructed) but are encouraged to speak directly with the judge. The judge hearing the settlement conference will make a final or further directions order, but then has no further involvement with the case.
Munby acknowledged that the pilot has received a mixed response from solicitors.
The Association of Lawyers for Children, in guidance issued to members in July, said the scheme undermines judicial continuity. The right to professional advocacy is also undermined if lawyers are expected to remain silent, it added.
Pilots have been taking place in Cheshire, Merseyside, Devon, Central London, South East Wales, and Avon, Somerset and Gloucestershire.