THE PRESIDENT’S REVISED PRIVATE LAW PROGRAMME

Please provide any comments you have in relation to the draft revised guidance for the Private Law Programme below.

Is this helpful? / Is there any additional information or detail required?
1 / Introduction / Yes.
Whilst the present Private Law Programme was issued as a guidance it may be preferable for this revision to be issued in due course as a Practice Direction, bearing in mind the desirability for consistency across the Family Justice System in a way that does not prevent appropriate local practice that is consistent with the Practice Direction. Your views are invited. / Provided that it does not unduly delay implementation, issuing the revised Private Law Programme as a Practice Direction would be preferable.
2 / Principles / Yes.
3 / Practical Arrangements Before the First Hearing
3rd bullet point
The appropriate stage for Cafcass to speak to the child(ren) / Yes.
It is recognised that for the first hearing the court should if practicable have available details of any fact or allegation that may indicate a risk of harm to the child(ren). It is agreed that this will come in part from the checks carried out by Cafcass. These checks may not be comprehensive and it is also recognised that important information may be available from the respondent who may not have mentioned it in the C7 (if completed). We have not yet settled on the best mechanism for obtaining this additional information. Your views are invited.
The question of the child(ren)s future involvement is one of the matters to be addressed at the first hearing. The issue of Cafcass speaking to the child(ren) before the first hearing is discussed at C6 in the attached letter setting out the factors considered by the working group. The group is still considering this very sensitive issue and has not yet reached a conclusion. Your views are invited / The nature and extent of safeguarding checks beyond the most routine and fundamental should be considered at the First Hearing by the court working collaboratively with the parties, their legal advisers (where represented) and the Cafcass officer. This would ensure an approach to the obtaining of further safeguarding information that is:
(a)uniform (insofar as it can be),
(b)focused,
(c)proportionate, and
(d)unlikely to delay the taking place of the First Hearing.
We respectfully endorse the comments and reasoning set out in the attached letter of HHJ Altman at B(iv) (first two sentences) and at C8. The issue of speaking to the child should be considered collaboratively and in a planned and informed way at the First Hearing.
On both issues and more generally, the advantages to any represented parties of being able to seek and receive independent expert legal advice:
  • as part of the collaborative process,
  • as a means to achieving informed agreement, and
  • as an aid to understanding the issues involved,
should not be underestimated. That factor too strongly militates in favour of having the First Hearing as early as possible and covering as much as possible.
4 / The First Hearing / Yes.
5 / Allocation to the Appropriate Court / Yes.
6 / Consent Orders / Yes.
Checklist of matters to be considered at First Appointment / Yes. / We would add at the end of 1 (for clarity):
What (if any) further safeguarding steps need to be taken? What (if any) further safeguarding information is required?
[There also needs to be a question mark at the end of the existing sentence.]
We would replace the existing 4 with the following:
Is the case suitable for resolution other than through contested court proceedings? Have the parties been made aware of other options for resolution (eg mediation by an external provider, other intervention by Cafcass, collaborative law, use of parenting plans)?
To ensure transparent consistency with the DV PD, and thereby ensure that Fact Finding hearings are ordered only when appropriate, we would replace 7 with the following:
Is a Fact Finding hearing required to determine allegations made by one party against another whose resolution is likely to affect the decision of the court, and/or what (if any) risk assessment may be needed?
The first bullet point would remain as it is.
We would replace the second bullet point with the following:
Where allegations have been made but the court determines that a Fact Finding hearing is not necessary, the court order shall record the reasons for that decision.
Any additional comments / The ALC would wish to express its thanks to the Private Law Group for the work that it has undertaken. In our view, the key to success in this area lies in creating a framework:
  • that properly recognises the advantages of early, focused and proportionate intervention,
  • that seeks collaboratively to harness the skills and experiences of all those involved within the process;
  • that appropriately and sensitively involves the child; and
  • that has at its heart the welfare and safety of the children concerned.
Subject (to a degree) to the residual issues being resolved in the way that we would suggest, we believe that the revised Private Law Programme meets all these objectives.
Please state your name and the organisation you represent / This is the response of the Association of Lawyers for Children and has been prepared by its Private Law Sub-Committee.
Dated 27th November 2008.