President of the Family Division expresses his support for settlement conferences

The President of the Family Division has released a statement confirming his support for the piloting of settlement conferences for public and private law children cases. He states:

“the pilot has my full support…I would like to encourage judges to consider adopting the pilot in their area”.

What is a settlement conference?

A settlement conference is a hearing held for the purpose of discussion and settlement of a case. It is a without prejudice hearing that takes place before a judge with the consent of all the parties. Without prejudice means that what is said and discussed during the settlement conference will not be admissible in evidence at a final hearing. It will ordinarily take place after an ‘Issues Resolution Hearing’, at which the judge will raise the possibility for settlement conference and ask parents or carers if they would like to take part. If the parties agree to attend a settlement conference, the court will still list the case for a final hearing date, in case matters cannot be agreed at the settlement conference.

The judge hearing a settlement conference will be different to that of the trial judge and will be specially trained in dealing with hearings of this type. Settlement conferences are more informal than a final hearing, for example, the judge will come down from the bench to speak to the parties individually to try and get them to reach an agreed resolution. This will be a unique opportunity for parties to talk directly to the judge. Nevertheless, legal representatives will be present for guidance and support throughout.

At the end of the settlement conference if there is agreement on all matters, the case will end and an order will be drafted reflecting the decisions made. The parties will not have to attend a final hearing. If agreement is not reached, the case will proceed to final hearing.

The pilot

Following its success in Canada, the scheme was piloted in Cheshire and Merseyside and has since expanded to other areas. The pilot is currently being evaluated by specialist social researchers from the Ministry of Justice Analytical Services. Participating judges and lay parties are being asked to engage in telephone interviews to explore their views and experiences of what went well and what did not work well.

Guidance and training

Initial feedback has indicated that family judges would find training and further guidance helpful before participating in the pilot in their area. As a result, the courts and tribunal service have published a package of training and guidance materials including a training video, draft directions and an information leaflet for parties. The video is a film of two fictitious settlement cases that are based on real settlement conferences that have taken place in the courts of Cheshire and Merseyside. The process is depicted as being very relaxed, with the judge coming down from the bench and chatting informally with each of the parties. In the video, the judge draws attention to the “golden rule” of settlement cases:

“There is a golden rule for settlement conferences and that is anything that I say to you, or you say to me or we say to each other is confidential to today...the procedure is very informal, I want you to be able to tell me how you feel about this. I want you to be able to concentrate with the guardian on what is in best interests”.

Criticism

The President has not denied that there has been some criticism of the scheme, stating “I know that opinions on settlement conferences are divided”. Indeed in July 2016, the Association of Lawyers for Children raised some particular concerns about the project stating that the “scheme will seriously undermine public confidence in the fairness and transparency of judicial decision-making in the family courts”. To name just a few of their criticisms, the ALC is concerned that:

• Settlement conferences do not give enough consideration to the voice of the children, their participation and how their views are to be represented.
• The scheme may be in breach of Article 6 (right to a fair trial) and Article 8 (respect for private and family life, home and correspondence).
• Settlement conferences involve a judge seeking directly to persuade the parties to agree with his or her view of the outcome without full protection of professional advocacy and legally privileged advice.
• The settlement conference judge will not have attended other hearings and so will not have the depth of knowledge and nuance required to adequately hear a case.
• Lawyers are present at the conference but discouraged from speaking, therefore their presence provides on a semblance of legal representation.
• The scheme has been advanced by the MoJ to save court time and money.

Despite these criticisms, Sir James has indicated that settlement conferences remain an approach worth piloting in order to inform decisions on whether to take them further.