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ALC publish study on Judicial Approaches in Settlement Conference Pilots in Children Cases

Findings do not support roll out of the procedure in its current form

The Association of Lawyers for Children has published, and funded, a report by Dr Julia Brophy on judicial approaches in settlement conference pilots in children cases.

The President of the Family Division chaired the launch and seminar at which Dr Brophy presented the report's key findings.

The report is a qualitative study based on in-depth interviews with 19 advocates reporting on practices in 61 settlement conferences in the initial five pilot areas identified by the MOJ.

Dr Brophy states that findings to date do not support a roll out of the procedure in its current form. Further evidence, both qualitative and quantitative, is required. She says that the Protocol Principles (2016) were not applied consistently by judges. Variation in approaches covered the delivery of a preamble, attention to consent during the procedure, pressure on parties and advocates, and approaches to the involvement of advocates.

As to whether the procedure is fair, the picture is mixed. Only two of the respondents said unreservedly that the procedure was fair; five said that it had not been fair; eight had mixed experiences: it had been fair in some cases but not in others. Three said that while procedures were fair 'in the main', there were pockets of concern and thus caveats.

Of the 61conferences considered, 34 cases were fully resolved, 19 failed to resolve any issues and had a Final Hearing. A small number reached partial agreement or narrowed down the issues but there is potential for the procedure to make things worse – perhaps a lot worse – for the final hearing. Some agreements did not hold or were thought highly unlikely to hold.

Overall, most advocates said a properly conducted Issues Resolution Hearing could have reached the same result but restrictions on the time allocated to the IRH mean it is now largely 'administrative' with little/no time for judicially led discussion, negotiation and party reflection.

Findings to date raise concerns. Despite pockets of good practice, overall, they do not provide support for rolling out the procedure in its current form – indeed, there are several forms. Some of the concerns articulated at the start of the pilots have some merit.

One option, concludes Dr Brophy, in the absence of further quantitative research, might be to identify appropriate cases (e.g. private law disputes and the public law disputes outlined above) and develop a procedure with safeguards suited to those cases.

For the full report, click here.