username

password

image of 4 Paper Buildings logoCoram ChambersAlpha BiolabsFamily Law Week Email SubscriptionHarcourt Chambers1 Garden CourtGarden Courtsite by Zehuti

Home > Articles

Consent Orders: Triumph or Disaster? Working towards best practice in reaching consent orders

Following a multi-professional seminar, David Pitcher, Family Court Adviser, Cafcass and Carol Mashembo, barrister, Magdalen Chambers, Exeter with Dr Anna Gough and Sarah Evans consider the issues concerning best practice in consent orders in family proceedings.



 

 

 





Carol Mashembo and David Pitcher

How many times have we been before the court with a proposed order that the parties have agreed? The Judge congratulates the parents warmly. What we know is that they are relieved… or else frustrated and feeling 'backed into a corner'. Few parents may begin family proceedings aiming to reach a balanced agreement with their child's other parent, but many do conclude in this way.

To understand in a little more depth what might be going on and hosted by the Law Department at the University of Exeter, we gathered together a group of 24 colleagues, all of whom were involved in family proceedings. These included solicitors, barristers, social workers, Family Court Advisers, Legal Advisers, advice workers and mediators. The aim was to share ideas and experiences, bringing in the different and complementary frames of reference, and to think together about what effective and best practice might involve.

We began with two presentations looking at consent: first from a legal perspective, and then from a psychological perspective. These were designed to stimulate our thinking, before having discussions in small groups, then as a whole group. We hoped that this would form a modest piece of research. Between them, the participants had experience of many thousands of cases. 

Consent Orders: A Legal Perspective

Input was provided by Sarah Evans, a barrister from Magdalen Chambers, Exeter. Sarah shared both her own extensive experience, and the key legal principles.

It is important to remember that there is no real distinction between an order that is made by consent, and one made following a contested hearing. Thus, a party who reluctantly agrees to an outcome, or does not think it through, could find the order being enforced.

Sarah has found that there is a delicate balance between knowing from experience the kind of path a case might take, and not going further than the client wishes at that time. The secret is achieving consent "every step of the way", not just at the end, and also ensuring that the client knows that consent can be withdrawn as well as given during the legal process. Further, it often happens that parties will get very close to reaching an agreement, but cannot quite do so. At times like this, there can be pressure to push for an agreement, but an experienced lawyer will "sense the point at which you're not happy to push". It's better to give them time to think. 

The newly revised Practice Direction 12J, which came into force in October 2017, impacts on applications for child arrangement orders by consent. The court is mandated to consider all the evidence and information available in considering whether there is any risk of harm to the child. The court must not make an order by consent or grant permission for an application to be withdrawn unless the parties are present in court, all initial safeguarding checks have been obtained and a Cafcass officer has spoken to the parties separately unless it is satisfied that there is no risk of harm to the child and / or the other parent. The Practice Direction states that where domestic abuse is admitted or proven, the court must ensure that any child arrangements order put in place protects the safety and wellbeing of both the child and the parent with whom the child is living, and not expose either of them to the risk of further harm.  The recently revised version of this makes it clear that the court must [not 'should'] consider the impact of domestic abuse, as well as widening the scope of what domestic abuse involves.

A landmark judgement for consent is Livesey v Jenkins [1985 1 AC 424]. This makes it clear that the failure of one party to make full disclosure of the facts undermines the basis of consent. Consent orders must be made with sufficient information to avoid any suspicion that one party has been tricked. The court has a duty to scrutinise a consent order to ensure that there has been no undue pressure or unfairness due to lack of understanding. For a judge or Bench facing pressures on their time, it can be all too easy to breathe a sigh of relief when a consent order is proposed. 

Consent Orders: A Psychological Perspective

Dr Anna Gough is a clinical psychologist who is often called on to provide expert reports on children and families. What does she find are the important factors in reaching effective and lasting consent?

Many parents within family proceedings are experiencing chronic stress, tiredness and have basic physical needs, such as needing something to eat! These will severely limit that person's ability to think flexibly. Anna described how "rigidity sets in. They are in lock down". Something as simple as going for a short walk, or getting a drink, is likely to help.

Beyond this, people need help to listen to other people, and to look more objectively at a position they may hold. Anna called this "hovering above your thoughts" ['metacognition']. Sometimes, she will say to a person, "If only you could hear yourself".

This can only be achieved by the professional in conjunction with "heaps of validation", active listening which, as well as being helpful in enabling more constructive thinking, also models the value of listening for that person. Anna often spots "little glimmers of hope" as people begin to understand the other person. Many people may not be used to making free decisions, and expect to be "done to", especially by professionals. It helps to ensure that your role is properly understood, and not to assume this.

There remain a few people whose rigidity of thinking is such that they lack the capacity to understand the other person's view. This can indicate a much bigger psychological issue, where the parent may also be unable to understand his or her child's needs.

Themes from the Discussion

The following is a summary of the ideas that emerged from our discussions in the smaller groups and as a whole group.

What do our clients really tell us?

Most people begin proceedings with little of idea of what to expect of the court process. If any efforts have been made to work things out with the other parent, these will have failed. What they are convinced of, however, is that they are right: "They do not necessarily know what they want, but they want you to fight their case". When a case concludes with a consent order, however, people's experience is often one of relief and happiness about the outcome.

Imagine that, in a world in which crystal balls existed, a litigant was given a copy of the final order at the first hearing. In all likelihood, they would reject it. This is because the process of going through proceedings over a period of time can be a learning process- about what to expect of the court, but also about themselves, the other parent, and their child. It is testing their feelings against reality. It is a journey, and this is a major part of its value.

Many cases reach a level of agreement in which 'no order' might well be possible. However, people like to go away from court "with something", feeling that they have achieved something.

In a final order, the use of language is important, both in the order itself, and in conversations at court. Most outcomes can represent a benefit to both parties, and there are rarely complete "winners" or "losers", to use the categories of thinking with which they may have started their "fight".

This careful use of language, and steps towards co-operation, is very powerful for children: "Mummy and daddy have agreed" compared with "mummy and daddy have been told".

Consent is therefore the outcome of a learning process.

What can we learn from times when consent has worked? And from when it has not?

The major factor in a successful outcome is that a party feels that his or her experience and perspective has been validated. Only when this is felt can she or he move on. Seeking a contested hearing may just be a way of wanting your viewpoint to be recognised. Every professional involved in the process can play a part in this, and everyone's experience can be understood.

Another factor marking positive outcomes is building in time to think. A successful consent order will consist of several steps along the way, each considered and agreed. Several factors can work against this process, and lead to proceedings concluding too soon

• Running out of funds
• Exhaustion
• Fear of the courtroom
• An inflexible approach which refuses to be open to new information

Many in the groups made the point that if a client wishes to be too amicable, or to settle too quickly, they may not have understood the implications of what is being ordered. One example is the level of flexibility appropriate to these particular parents. A rigid calendar can provide clarity and certainty for some, but what happens when a date cannot be kept? The order needs to be as specific as possible, and avoid vague words such as "encourage".

If reaching a successful outcome is a journey, there are different people with potentially complementary skills and roles who play a part in this. A social worker might have a longer-term relationship, whereas a barrister may only be involved on one occasion. A shared overall understanding will stop these roles clashing.

If professionals have a key role, then the role of other family members is also important in making the arrangement work, or otherwise. We all know cases in which a parent comes back from court with an agreed order, only for a new partner or grandparent to think they have been 'sold short': "I have paid out a small fortune on legal fees for her, and is this the result?" How can wider family and friends also come along on the journey with the parent?

What skills are needed to help clients achieve successful consent orders?

The most significant factor in helping a client to move on is the establishment of trust. A client's faith may be built up over time, or can be established during a single hearing. Only once this trust has been established will the client listen to advice or accept the outcome of negotiations on his or her behalf. Once trust is present, an advocate will be able to tease out a client's true position, which is often different from the position initially presented.

It is also best when there is consistency and continuity of approach, rather than a change of judge, barrister or solicitor. This links with trust. However, it is also recognised that in an appropriate case, a change of approach [whether planned or unplanned] may also result in a shift in thinking which may help the process along. Several people felt that a new judge might ask surprising questions that had not been asked before, getting to the heart of the matter.  

It helps for a professional to explain their role really clearly. Without this, misunderstanding can arise leading to a defensive position. Some may find it strange to see "their" representative being so "pally" with their opposite number. Being defensive can happen more easily when people are anxious and fearful.

It can help to check, 'How are you feeling today?' If the answer is "angry", or "I really want this over with", the dynamic will be very different, and may have changed from the last hearing.

How do our clients negotiate the balance between what they believe to be right or are hoping for, and the reality of the situation?

A party will come to court with clear hopes and beliefs about what the outcome should be. These will contain a mixture of:

• What is morally right, in their view. For example, a parent might believe it to be her or his duty to protect their child from the negative example of the other parent, perhaps exemplified in coming home using swear words or having inappropriate knowledge.
• What friends and family have told them.
• What they think the child wants, or has told them. For example, a parent may observe a child's reluctance to leave them at the end of a contact, or conversely a child's unwillingness to go to see the other parent. They feel they are going to court on behalf of the child.
• Response to a recent 'trigger, such as a new relationship or an unexpected incident.
• Irrational elements [whether recognised or not], such as anger at having been left, fear of being left alone, or a wish to punish.

This is likely to be framed in terms of 'win or lose'. One of the aspects of a parent's journey through the court process is the exposure of these motivations to external factors, such as:

• The law, and the legal advice they receive.
• The other party's position, clearly stated in unemotional terms.
• The response from the court and court professionals. This might include guidance from the judge or feedback from Cafcass.

Often, a statement produced early in the proceedings can be quite "brutal", and it does not really reflect the totality of the person's feelings.

This task of negotiation begins when any professional involved helps them unpick what they are seeking in the light of what is possible. This includes identifying what is really significant in terms of values. The groups talked about "testing parties' stated positions" and identifying what is most important. The court and professional agencies will have their own angle, which will contribute to the reality of a position. These might include recognising domestic abuse [which includes putting minor or unverified incidents into proportion, as well as recognising more serious patterns]; being clear about the benefits of having a relationship with both parents; and a child's need for stability and routine.

Moving away from a position based solely on what is personally felt, to taking other factors into account is important because, almost whatever the outcome of the court, the future will need to involve some shared relationship with the other party. It might be thought that a totally contested hearing simply makes this post-hearing relationship less likely to be successful because the period of the proceedings has not been used to prepare for this, and may in fact have made things more difficult.

Some clients complain that they feel "pushed" by their lawyer into a position they do not truly hold. This may indicate that the process is moving too quickly. It may well be seen as a success if the original gap can be narrowed, rather than closed altogether: as pointed out by Sarah, barristers agreed that they have a developed sense of when it is inappropriate to push any further. A contested hearing in which a few narrowly defined issues are adjudicated, perhaps on submissions, may well be a significant achievement for the parties, and if well handled by the judge may be more likely to result in a positive long-term outcome than an order which is technically 'by consent', but where a party feels "pushed into it".

An important question to consider is whether any co-operation achieved can work if the various supports around the parent, which formed part of the court process, are no longer present.

Is there a difference between privately paying clients and those who are publicly funded, or who represent themselves? Probably no one group is better or worse at reaching a positive agreement, but the pathways may be different. Some may reluctantly agree because they are running out of funds, whilst others for whom funding is less of a concern may 'fight on', and miss opportunities to reach consent. With every situation, there are probably factors which support reaching positive consent, and factors that work against it. 

What is the court's role in approving consent orders?

The court process can be of great value in helping parties to think through their positions in a constructive way whilst preventing unfairness whereby 'consent' is simply a form of coercion by one party. The court process introduces important considerations such as recognising a child's feelings; addressing diversity; identifying domestic abuse; redressing power imbalance; and bringing in expert assessment where necessary.

The judge's role in scrutinising a consent order is a crucial link in the process. It would be understandable for a hard-pressed judge or Bench to welcome a consent order a little too readily for the wrong reasons. Participants felt that a judge will often check that a client really understands the order being proposed, but it is very rare for a draft order to be rejected. In fact, there was only one experience of this in the whole collective experience of the group. This is in contrast to consent orders for financial arrangements in divorce.

The experience of courtroom practice may not always be as conducive to the journey towards positive consent as it could be. For example, spending a lot of the court day shut up in a small room, in an anxious state, with your lawyer carrying out mysterious conversations with 'the other side', is less than ideal. To be in a more comfortable and relaxed setting would fit much better with some of the psychological factors highlighted by Anna.

Conclusion

This discussion represents the pooled experience of 24 professionals with extensive experience of working with families in court. What emerged was that the correct question is not 'Is this a consent order or must there be a contest?' Rather, it is 'Is this outcome the result of a genuine development in understanding? Is it experienced as fair to both parties, and can thus form the basis of future more co-operative parenting?' In brief, there is a big difference between different kinds of consent.

In summary, our discussion indicated that positive indicators for an effective and lasting consent included:

1. The agreement has been built up over time, not under pressure at the last minute.
2. All the issues that are important to the parties have been taken into account. Issues that are not acknowledged [even if seemingly unimportant to an outsider] are likely to disrupt the whole of the order.
3. The arrangement represents a new or fuller understanding of the other parent, and of the child's needs.
4. The final arrangement is supported, or at least not opposed, by all key family members.

Consistency and continuity of professionals, including the judge, works best. Within any set of proceedings, there are bound to be changes. Approached creatively, these can also have a positive influence on moving the case towards a successful conclusion. These are opportunities to be used.
If there are positive benefits for children in knowing that their parents have reached an agreement about their care, then thought might be given to how this might be maximised. For example, a judge might 'give an indication' of his or her view, and then allow the parties to consent on that basis. There may be times when parents might meet jointly with their child, perhaps with professional support, to explain that they have agreed. This can be thought about at the time the order is finalised.  

Several wider considerations might help to improve the chances of positive consent.

1. Creating a relaxed environment in which to have discussions and negotiate would help. The average busy court building, with limited private space and an anxiety-provoking atmosphere, seems designed to create problems. DRA's are not as effective as they should be because of the limited court time provided and the pressures that come with that.

2. Similarly, the common practice of barristers and solicitors leaving a client confined in a small room while they go back and forth negotiating with their counterparts does not make for an environment most conducive to creative thinking. As the redevelopment of the legal infrastructure is unlikely in the foreseeable future, it might be that wider and more creative use might be made of advocates' meetings, involving parents, outside court?

3. A realistic understanding of shared parenting and legal rights and responsibilities in the event of parental separation, including the role of the court and its representatives, might usefully be taught to young people as part of the national curriculum. 

The Positive Parenting Programme, recently set up by Cafcass, represents an attempt to make the journey through proceedings more likely to result in a positive understanding between the parties, based on a fuller understanding of the experience of the child. It works effectively with the right cases.

In her book 'I thought we'd never speak again', Laura Davis describes how in the majority of cases "deep listening leads to an opening of doors".  This is achieved "when our objective is to get to know another person, rather than to win". This may seem strange for parties who come to court either because they feel they know the other all too well already, or because going to court is part of their plans to move further away from a relationship. However, at its best the court process is, in fact, about getting to know the other party better, albeit from a different position.

It is positive that the principle of consent is gaining in importance. It may result in a happy union between limited resources to continue contested cases, and a fuller understanding of the potential damage done by ongoing conflict. Added to this, developments such as those contained in Practice Direction 12J ensure that agreements reached are not simply the embodiment and continuation of unbalanced relationships. In truth, most consent orders are neither triumphs nor disasters for the parties but, with skilled guidance by all those involved, they can represent something far deeper than either of these two 'imposters.'


References

Davis, Laura. 'I thought we'd never speak again: Strategies for repairing broken relationships'. London: BCA. 2002. The quotations are from page 184.

Kipling, Rudyard. 'If', in 'Rewards and Fairies', Macmillan and Co, 1910, contains the lines:
"If you can meet with triumph and disaster
 And treat those two imposters just the same…"

Dr David Pitcher is a Family Court Adviser and Children's Guardian with Cafcass, based in Plymouth. Any views expressed are personal, and not necessarily those of Cafcass.

Carol Mashembo is a barrister with Magdalen Chambers, Exeter, which also sponsored this event.

The authors invite correspondence on the issues discussed:
david.pitcher@cafcass.gov.uk

David and Carol would like to thank Sarah Evans, and Dr Anna Gough, for their contribution; students Jess, Lisa and Jake from the University of Exeter Law School for taking notes and giving their support; Lisa, Jenn and Charlie from Magdalen Chambers; and the 24 participants in the workshop.

4 September 2018