Thursday, November 22, 2007

In-Court Conciliation

The Ministry of Justice has published a report upon the longer-term outcomes of in-court conciliation in children matters. The findings of the report suggest that conciliation has a very high success rate, but that in the following two years the majority of parents had required further professional intervention, and 40% had been involved in further litigation.

I would say that these findings are in line with my own experience. There have been occasions when I have attended hearings in cases where the parties were so far apart that it seemed impossible that any agreement could be reached, only to find that the CAFCASS officer had brought them together. Of course, success rates can vary, depending upon a number of factors, not least the skills of the CAFCASS officers involved and the time they have available to each case. Typically each conciliation meeting is allowed about thirty minutes - to expect all matters to be resolved long-term in such a short time is obviously a little unrealistic, although an agreement reached in conciliation can be the catalyst for better relations between the parents.

I know it won't go down well with fathers' rights groups, but I agree with this conclusion to the report:
The family justice system has been subject to sustained criticism over the last few years. The findings in this study suggest that some recent criticisms, particularly from fathers groups, are misplaced. The courts do appear to be relatively effective at ensuring that contact occurs. Two years after the initial conciliation appointment significantly more children were having contact, and more contact, than they had been prior to coming to court.

[Hat-tip to Current Awareness for pointing out this story and, in turn, to Charon QC for pointing out Current Awareness!]

9 comments:

  1. ‘It won’t go down well with fathers’ rights groups,’ that’s very cynical, John. No one would be happier than us if it were proved that the courts were beginning to improve contact. Undoubtedly conciliation is an improvement on the traditional adversarial process, though we still believe that it is better if cases can be kept out of the courts altogether, and that the present system increases and rewards hostility.
    Whether Liz’s report justifies the claim that criticisms of the family justice system are misplaced I think is doubtful. I have already disputed her methodology with her and remain unconvinced; 117 parents is a tiny sample, and I am not persuaded that the way they have been chosen is representative. A more reliable indication of the efficacy of the courts would be gained if the courts actually monitored whether ordered contact were taking place, but as we know, they do not. Can you imagine if the CSA didn’t monitor whether child support was being paid? These concerns notwithstanding, is a 40% failure rate within 2 years impressive? Would you go to a surgeon who offered such odds?

    The critical statement for me is the comment, ‘the amount of contact in place before court was also the strongest predictor of the amount of contact after conciliation.’ That indicates to me a system which is able to have only limited impact on outcomes; not surprising when, again, outcomes are not monitored so that intervention cannot be developed to deliver the best outcomes. The report concludes that conciliation ‘has very limited impact on making contact actually work well for children’, and recommends, ‘serious consideration should be given to recasting these matters as public health rather than legal issues and moving towards the development of comprehensive services for families in the community rather than within the family justice system.’

    I cannot see much cause for rejoicing in this report, indeed, it is pretty critical of the courts which are condemned for focusing on contact timetables rather than trying to understand the issues involved in parental conflict. The level of conflict and the impact that has on the children does not seem to be diminished by conciliation, ‘In contrast, mediation with a clearly therapeutic orientation and emotionally-informed content can have a profound and enduring impact on relationships.’ Isn’t that what we have been saying for the last 5 years?

    Curiously, when I sent Liz a copy of our Blueprint she rubbished it; the recommendations in her present report, however, are a ringing endorsement of the proposals for radical change contained in it.

    Nick, F4J

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  2. Thanks Nick - I was waiting for your comment. I agree with some of your points, but my experience is that the courts do succeed in establishing contact far more than they fail. That is not, of course, to say that we should be complacent - the search for a better solution should continue, and I feel your Blueprint has some good ideas, as I believe I have said previously on this blog.

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  3. Can I add that we should be cautious about what we mean by 'contact' (contact is for aliens!). One hour a month supervised 'contact' charged at extortionate rates is not parenting. The occasional letter or email is not parenting. One photo of children who may or may not be yours every 6 months is not parenting. But they are all 'contact'. This is why we reject the whole residence/contact paradigm - it is meaningless and demeaning. Even if we accept that the courts establish significant, meaningful contact (and I don't without evidence) they seem to be unable to do so without considerable conflict between parents and suffering and harm to children.
    My impression (and it is only that) is that perhaps fewer people are affected by the courts (and we will have the figures on the 29th) but I still read every day stories of the most appalling injustice from the courts; and in other areas (child support, the 'need for a father') things are getting worse, not better.

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  4. "...they seem to be unable to do so without considerable conflict between parents and suffering and harm to children" - that's just it: most of the conflict comes from the parents, not from the court or lawyers, who are doing their best to reduce conflict. (There are, unfortunately, exceptions.)

    "...I still read every day stories of the most appalling injustice from the courts" - but the vast majority of cases are successfully concluded and not reported.

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  5. Bad analogy coming up(it's been a long day): cockerel's are happy pecking around in the dirt, but if you put them in a cockpit and goad them sufficiently they'll fight to the death. The courts are the wrong place to settle these disputes, they make parents into bitter adversaries instead of enabling cooperation. The conflict comes from many sources, including the structure, the ritual of position statements, the usually incompetent s.7 report, the endless (often tactical) delay, the grief and loss while contact is thwarted yet again, etc, etc. Yes, parents are ultimately responsible - they choose to behave in such a way that the other is forced to go to court - but they are not well served by this system, and as Liz Trinder's report shows, there are obvious ways of reforming it.

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  6. On paternal contact: have you seen the case that is currently before the German constitutional court concerning a father who does not want contact with his son (with a former girlfriend, I believe the boy is now 8 or so), claiming that it would endanger his marriage.
    The existing court ruling from a lower court actually orders him to meet with the boy on pain of a rather hefty fine, so he is appealing to the highest German court (the only step beyond that I believe is the European Human Rights Court).
    I have not followed the case closely, but I could Google for a few sources if you are interested. (The language is no problem - I earn most of my bread and cheese translating legal stuff from German).

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  7. Victor, I've not seen that case. It does sound interesting, and is certainly not something I've come across before. Any further details (in English!) would be appreciated.

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  8. OK, I'll get onto that later and do a summary.
    (Have an urgent contract translation on my desk at the moment).

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  9. Sorry about the delay - had an unexpected ten days in hospital, and now I have to pick up work again gradually. I'll try to get back on this one as soon as I can.
    Can't see your mail address anywhere - you can reach me on:
    translation (at) dewsbery (dot) de

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