I was apprehensive about settlement conferences for public law cases, but a pilot scheme in Devon has made me rethink.
Settlement conferences are like Marmite – you either like the idea or you don’t. In Devon we were part of an early pilot scheme and to say it caused consternation is an understatement.
Practitioners queried how parents who might lose their children permanently could be asked to settle in the same way one could settle a civil or financial case. I was one of those who had those anxieties. In the public law family arena we deal with some of the most vulnerable and sometimes easily persuadable people.
The fear was that parents would be too easily persuaded by the judiciary to settle. Speaking to others it was felt that clients would be open to a judge’s persuasion, the clients would be impressed by judges speaking directly to them and appealing to them in the courtroom. The fear was that lawyers would be sidelined and that clients would be exposed to cajoling or coercing which they would not withstand and would lead to them agreeing because they wanted to please, didn’t want to be seen to be obstructive or simply couldn’t withstand the perceived pressure. I was therefore concerned about the inequality of the system.
So I entered my first settlement hearing just over a year ago with apprehension. The case had been identified by the judge as a suitable case for such a hearing. At the time, the care plan was to remove the children permanently, the eldest into foster care, the youngest for adoption. I was acting for the children and with my knowledge of the parents I did not see how settlement could be reached.
However, once the expert evidence was received the case took a turn, with the children remaining under a comprehensive support package as a real possibility. Our designated family judge HHJ Miranda Robertshaw conducted the hearing. She set out by identifying the issues faced by the parents and what they needed to do for the children to remain.
She was clear that removal of either child was not likely to be approved and that the family needed to have greater support in the community. She identified what areas she thought needed to be plugged in the plan and told us that she wanted us to come up with a resourced plan so the children could remain in their parents’ care. The time actually spent in court was short although the case was listed for a day.
She gave the parties as much time as they needed to discuss and negotiate but she made it clear that she would be available if needed to assist with judicial guidance. We did not feel under pressure and agreement was reached. The children remained in the family with a full package of support and final orders were made without the need of contested evidence. This settlement conference was a success but I was still unsure – in a case where permanence outside the family was an option what pressures would be applied?
I can now say, having been through the process on other occasions, that the Devon model has evolved from the model that we all thought would be implemented. It has evolved in a way which makes me happier to embrace it and consider it as an option. I still feel there are cases which are not suitable – permanence by way of adoption being the one that I really struggle with for obvious reasons.
I think my change of heart is down to the tweaking of the process, which happened in our area. Whilst we are encouraged to consider such a hearing, the decision to go down that route is a very collegiate one. All parties need to agree that it is the right route and it is only when we are satisfied and the parents, in particular, understand the process, will it be listed.
Times where it has proved effective have been where contact is an issue on a long-term fostering basis or where there is a plan with a placement within the family. Being a more informal hearing, it can avoid damaging family dynamics yet still allow the family to understand that it is being guided by the independent hand of the judiciary. It also allows the parents the ability to participate in the decision-making.
Devon still retains some formality which I know may not be the case in other areas. The judge may sit in the chair usually reserved for the clerk, putting her on the same level as the parties but she ensures there is still distance to physically maintain the authority of the court. At no stage have I seen the judge sit alongside any of the parties which would be a real concern for me.
No parties are seen individually or without the lawyers present unless it is agreed by all parties and their lawyers that is the right way forward. I have yet to see that occur. The judge does speak to the parties directly regarding the issues and the possible outcome but lawyers play a part. My fears of coercion, persuasion or seeking to emotionally influence the parents has not been evidenced in those conferences I have taken part in.
What I have witnessed are frank discussions about the realities of the situation. I have not felt anyone who has reached agreement in such a hearing has walked away feeling bullied or unheard. No doubt because of personality traits some courts will not be right for these hearings. My experience tells me the personalities of all present, the judge, the parties, the lawyers, influence the chance of success and no doubt all in the profession would benefit from further training on the softer skills needed. It is much welcomed that the Ministry of Justice is working with HHJ de Haas to develop training materials for judges in the pilot areas. In time, I hope this will be shared with lawyers to ensure all are confident they understand the aim, process and challenges of settlement conferences.
There will be cases that will never be suitable for these types of hearings and I would hate to see parents coerced or forced into them for statistics sake. Parents must continue to have the ability to put their cases and should not be prevented in doing so. The fact that cases identified for settlement conferences are already listed for a final hearing provides some comfort and mitigates against delay.
I was an opponent of the system initially for the reasons that I have set out and it may be that those reasons are still valid in other areas. What doesn’t help is its branding. Why ‘settlement’ when the aim of the hearing is to resolve some or all of the issues – so let’s call it an Issues Resolution hearing and use this hearing more effectively.
This article should not be read as an article that believes that parents do not have the right to challenge or to contest cases but in my experience there are cases where with the right case management, agreement can be reached and that has to be worth exploring.
Vanessa Priddis is senior associate solicitor at The Family Law co