All in the family

Duncan Adam explains how the private law programme can reduce procrastination in children and family cases

By 2004, contact and residence disputes had got into a formulaic rut. Cases were attracting judicial criticism, for example, in Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) [2004] 1 FLR 1226 and in V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam) [2004] 2 FLR 851.


Typically, an application for contact or a residence order would be followed by a first appointment, at which a series of standard directions would be given, including for the preparation of a section 7 Children and Family Court Advisory and Support Service (Cafcass) report. With delays in allocation, the report might not be available for 20 weeks or so, and a final hearing fixed perhaps months after that. The report might not be available by the date directed, meaning the case timetable would require rescheduling by the court.


Once a 'final' decision was made by the courts, that was it. If the decision was not working out in practice, the parties had to make a fresh application and start the whole cycle again. The process would involve any number of directions and final hearings with different judges presiding. Mr Justice Munby in Re D lamented that 'the all too frequent response to any significant problem with contact was to list the matter for further directions; reduce contact in the meantime; obtain experts' reports; direct the filing of further evidence - all of which produces only further delay which in turn, exacerbates the difficulties and leads eventually to a situation which may be irretrievable'.


The former president of the family division, Dame Elizabeth Butler-Sloss, met these criticisms full-on with her the private law programme for Children Act cases. It involves:

An early first hearing dispute resolution appointment (FHDRA) in all cases, listed before a district judge between four and six weeks of issue of the application.

Use of in-court conciliation with, wherever possible, Cafcass practitioners at the first hearing.

Detailed and individually focused case management at the first hearing to identify agreements of those issues that need to be determined and a timetable for the case.

The focus of Cafcass reports being limited to those identified issues &150; full reports are expensive. Out with a bald direction to report on contact or residence; in with a tailored direction to report, for example, on the issue of staying contact with father and new partner.

Judicial continuity and the continuity of Cafcass practitioners wherever possible.

Using notices of hearing informing the parties that an FHDRA has been fixed with a view to attempt to resolve the issues and to explain the conciliation system that runs at the court.

Informing parties of the local arrangements (if any) for the involvement of children attending court. Many courts are following the lead taken by the principal registry of the family division where there is provision for interviewing children aged nine and older at court by Cafcass.

Urgent applications by Cafcass are to be heard by the allocated judge within ten working days at any stage of the proceedings, including following up the outcome of court orders in appropriate cases.

The FHDRA is crucial to the success of the scheme. As its name implies, it is intended to investigate whether the dispute can be resolved. It is up to local courts to tailor the conciliation aspect of the FHDRA to their own local requirements and resources. The district judge and the Cafcass representative should be alert to cases, for example, which involve child protection issues or where one parent has raised issues of violence, and in which conciliation is inappropriate.


However, these concerns apart, a district judge and Cafcass representative will investigate and facilitate an early resolution of the parties' disputes. If the disputes cannot be resolved there and then, the parties should be provided with details of outside mediation agencies.


If safety issues have been identified at the outset making conciliation inappropriate, the district judge must decide what should be done about them. In the past, there has been a tendency for domestic violence, for example, to be raised in the parties' statements and for the Cafcass report to recommend a finding of facts hearing, with further delay before that can be arranged. The district judge at the FHDRA should now decide in all cases what the issues are and whether a finding of facts hearing is necessary for the determination of those issues, and put in train appropriate directions.


Having established the issues and how they should be dealt with, the district judge will then consider at what level of court the issues will be determined. district judges may transfer the simpler cases to the family proceedings court, so long as that does not incur delay. The local district judge will have established an understanding, if not a protocol, with the justices' clerk. He will canvass the parties' views before making a decision.


If there is no agreement at the FHDRA and timetabling is necessary, it is important that the directions given are focused. Statements should be confined to the identified issues. They should not consist of a catalogue of past grievances, unless that is essential for determining the issues concerned. Parties should be encouraged to look to the future of their children's care rather than the past.


Are experts really necessary? This question should be answered at the FHDRA, not later. Any expert report should be focused and the focus should be identified in the directions order. Wherever possible, the expert should be instructed by the parties jointly. The district judge is likely to direct service of the order upon the expert concerned.


The district judge should identify an allocated judge who should, wherever possible, preside over all hearings relating to that application. Judicial continuity can of course cause difficulties for listing officers, but any disadvantages are outweighed by the advantages of control and continuous case management.


Annex F to Dame Elizabeth's guidance consists of a recommended record of hearing and should be followed. A number of district judges produce and print children orders at hearings. Parties should in any event know of the next hearing date before they leave the court building. A direction for listing 'the first open date after...' is a recipe for delay.


The Family Justice Council is promoting the adoption of the private law programme in all courts with family jurisdiction. Once the programme is universal the emphasis will have shifted from passing through procedural hoops to concentrating on the individual child's welfare and avoiding delay.


District Judge Duncan Adam sits at Bath County Court