Guidance from the Ministry of Justice about ‘Settlement Conferences’

I was sent this guidance in June 2016, relating to the ‘settlement conference’ pilot that will be taking place between June and October 2016 in selected court centres. It will be interesting to see how it develops (I have already suggested that one case would be suitable) – but it does appear to be attempting to achieve what the Issues Resolution Hearing was originally designed to do!

Settlement Conferences

The government is testing a new collaborative approach to dealing with public law family cases (“care cases”) called a settlement conference. If parties consent, they will be involved in this test (called ‘a pilot’). This guidance provides information on what will be happening during the pilot and what the government will be measuring.

A settlement conference is a hearing held for the purpose of discussion and settlement of the case. It is a without prejudice hearing that takes place before a judge with the consent of all the parties.

A without prejudice hearing means that what is said and discussed during the settlement conference will not be admissible in evidence (except at the trial of a person for an offence committed at the conference or in the exceptional circumstances indicated in Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231, where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child). The judge hearing the settlement conference must have no further involvement with the case, other than to make a final order by agreement or a further directions order. The purpose is to try to resolve some or all the issues by agreement. Parties will attend with their legal representatives (where instructed) but are encouraged to speak directly with the judge with the aim of settling the case or particular issues.

The judge hearing a settlement conference will be different to that of the trial judge. They will be specially trained in dealing with hearings of this type. The settlement conference judge is a different person. Before the conference, they will have read the case file and might ask the parties questions during the conference.

The judge may not make an order resolving some, or all, of the issues without the agreement of all parties. Where an application is for adoption or placement, a judge may give a judgment with the agreement of the parties (e.g in care order or placement order application where there is no opposition to the same.)

Process

Settlement conferences will take place for public law cases. They will ordinarily take place after an Issues Resolution Hearing (IRH) At the IRH, the parties will be asked if they consent to take part in a settlement conference to be assisted by a judge, other than the trial judge. The court will still list the case for a final hearing date as well as a settlement conference date at IRH stage to ensure there is no delay if the matter is not resolved and a final hearing needs to take place.

During the settlement conference the judge will work with parties in a way that promotes settlement. There is no obligation or pressure to agree to anything at a settlement conference. If agreement is not reached, the case will proceed to final hearing.

At the end of the settlement conference if there is agreement on all matters, the case will end and an order drafted reflecting the decisions made; the parties will not have to attend a final hearing. If some or all of the issues remain outstanding the parties will come back to court for the final hearing or adjourned settlement conference if appropriate.

What will happen in the pilot and what are we collecting

The pilot will be testing how these settlement conferences work. At the end of the settlement conference the judge will fill in a form (see attached). The form the judge is asked to fill in will help the government understand the reasons why a case is referred to a settlement conference, the outcome, time spent on preparing and facilitating the conference, the number of final hearing days listed and the estimated number of days saved (if a case settles). No personal details about the parties will be recorded.

From July selected judges, Cafcass representatives, local authority solicitors and lawyers involved in the process will be asked to take part in interviews and workshops where they will be asked about their experiences of settlement conferences. They will not be naming individuals that they have worked with, they will only be asked about what they think about the process, what went well and what did not go well. If you (as a party of the proceeding) would like to give feedback on what you thought about the settlement conference you can tell your legal representative who may be asked to provide this as part of the research.

How long with the pilot last?

5 months starting from June 2016 and ending in October 2016.

What will happen to the information that is collected?

The information will help government to understand whether this way of conducting a court hearing is a good thing. It will also help identify any problems with the system.

Information for other people involved

Judges and court staff have been provided with guidance on settlement conferences. If you have any questions or would like to know more information please ask the settlement conference judge.

34 thoughts on “Guidance from the Ministry of Justice about ‘Settlement Conferences’

  1. Angelo Granda

    One parent’s view.

    This is just the kind of radical reform to the justice system necessary ,in my opinion and i support the testing of all such ideas.
    This one envisages mediation with a truly impartial medium conducting the procedure.

    It will be interesting to see from which direction, if any, objections to such a process come. Cynics amongst parents will be predicting that Local Authorities with illegitimate aims will already be devising strategies to negate any impact such helpful reforms will have. Let us hope that all good,honest SW’s will support these initiatives and work with the flow not paddle against it or stir up cross-currents.

    QUOTE: At the end of the settlement conference if there is agreement on all matters, the case will end and an order drafted reflecting the decisions made; the parties will not have to attend a final hearing. If some or all of the issues remain outstanding the parties will come back to court for the final hearing or adjourned settlement conference if appropriate :UNQUOTE

    I would say that two of the main issues which should be decided upon by the settlement conference and which should form part of the order reflecting decisions made should be:-
    1. Whether or not parents are able to acknowledge concerns, work constructively and cooperatively with the authorities and accept professional support.
    2. Whether or not any alleged MH problem is major or minor and whether therapy is absolutely necessary etc. GP’s should be consulted.

    If a final hearing should be needed , i suggest the settlement judge ‘s views on those issues should be passed on to the final hearing.

    Other points worth discussing:-

    A) Is the settlement conference to include members of the LA safeguarding children team or will it just involve parents,the Guardian and the CS? Don’t forget it is the LA Social Services Department which is the applicant (the complainant authority ) not the CS.

    B) Will a settlement conference be available when a parent is applying for discharge of a care-order, a contact order or for an appeal?

    C) I suggest the settlement judge should attend some contacts, one at the beginning and one llater on to see the children,judge their emotional condition,physical condition,attachment to parents etc. for themselves.

    D) Will children attend the settlement conference?

    I am looking forward to all comments.

    Reply
    1. helensparkles

      “A) Is the settlement conference to include members of the LA safeguarding children team or will it just involve parents,the Guardian and the CS? Don’t forget it is the LA Social Services Department which is the applicant (the complainant authority ) not the CS.”

      Bit confused by this so just asking a question. The LA social services department is Children’s Services now in so far as that relates to children, so is CS?

      Titles do differ and different LAs call it different things at different times. AT some point but we seemed to have moved from Children and Young People’s Services (because it included education in a way that isn’t so widespread now that there are academies galore ) to Children and Family Services.

      The Guardian is obviously separate as part of CAFCASS and the Safeguarding Team is where the IROs live who chair conferences. So Safeguarding would not normally be in court.

      Although the LA is cited as being involved, that does usually just mean the legal process involves any relevant LA people.

      Reply
      1. Angelo Granda

        It is an interesting point you make. However,on my experience and that of many other parents,the applicant ( the complainant authority ) is The Director of Social Services ( the S.S.) of the LA concerned.
        The CS ,according to the LA director of Social Services does not have the power to apply for orders or make orders except by the authority of the LA.
        The role of the CS is to act as an agent for the LA , to make fair and impartial investigations into facts and to present the facts to the CP conference which is chaired by an independent person .He ,i presume, comes from the same place where the IRO lives and he is meant to be independent from the CS and the LA.
        Please accept this if you can, because ,as i write, i have in front of me a letter from one DofSS which explains this to an MP.
        When I refer to a safeguarding children team , i mean those professionals involved with a particular child in a particular case. I.E. GP’s ,health visitors,teachers,etc.etc. The Safe Guarding Children Board is the IRO,Conference chair persons,the LA etc.,i think.
        I suggest if they do not attend the proposed settlement conferences, the conference judge should be able to contact them by telephone during the mediation process.

        Reply
        1. helensparkles

          I was just confused by you separating them out but that makes sense now. Children’s Services are a department in the LA, they work under the auspices of the director. Terms change but the IROs, Conference Chairs etc. usually sit within a Safeguarding team. The LSCB Local (Safeguarding Children Board) is the body that carries out Serious Case Reviews etc. Those reports are published after court cases are concluded if there is a criminal trial. What you refer to as the Safeguarding children’s team is not a team really. They are the multi agency Core Group who work together to safe guard children via Conference and the Core Group meetings.

          I don’t know if that is helpful.

          Reply
  2. Sam

    At first glance I am cynical about this working because:
    1. Presumably it does not take place in a neutral venue but in a court where parents are very likely to feel out of their depth.
    2. Professionals will automatically take the lead stifling the voice of any parent/child present
    3. I would not trust the process and open up knowing that the judge could make orders rather than recommendations, plus he/she could obviously talk to the trial judge in private.
    For me impartial mediation would be a far better and fairer solution than this halfway house.

    Reply
    1. helensparkles

      This is a great start I think. Any comments parents have should be fed back via their legal reps, then hopefully the issues your raise won’t be oppressive for parents (which is kind of how i read your post so forgive me if wrong), and that aspect of parents speaking to judges has been great in FDAC (there is criticism of FDAC but that bit works well as far as I can tell). It may be a step towards mediation hubs, which I think would be good, so whilst not absolutely as clear as a lawyer might be about how that all works, my view would be this is a step in the right direction rather than a halfway house.

      Reply
      1. Angelo Granda

        Sam, I think it is suggested that these settlement conferences will be informal with a round table,parents will be able to discuss matters openly and address arguments (to the judge even) without prejudice. No one will be able to use anything you say against you ,for example, that you are at the precontemplative stage, will not accept or discuss ‘concerns’ and will not work with professionals or that you are unlikely to change. It is hoped the settlement judge will be neutral and will LISTEN to parents which we all complain,does not happen with the current system.
        Anyway, this is only a test. I am pleased that something more radical is envisaged at least because ACTION cannot be delayed for ever.
        I suppose that every thing as per usual will depend ultimately on the integrity of the CS because if they go into the conference with false evidence,concealing things and so on,what can we do?
        Which is why i say i hope that by taking part in the conference with a parent and by what a parent says to him,the settlement judge will be able at least to quash any myths about a parent’s inability to accept support and change or any myths about MH.
        These two points are all too often used to remove children on false pretences.

        Reply
  3. Angelo Granda

    I suggest that the Dof SS initiates the case and it uses LA lawyers to bring the case.Before initiating the case ,it should have taken into account all the presentations made by the CS after it has completed its impartial investigations ( perhaps in liaison with Police).
    Thus as strictly speaking, they are not party to cases, but only a potential impartial witness at any resultant full court hearings, SW’s need not attend settlement conferences. All their input will have been at previous strategy meetings,cp conferences etc.
    I also suggest that ,if a parent has the support of a trained advocate to help get their points across, the attendance of solicitors may not be necessary either at a settlement conference. The neutral Judge will be able to take notes and ensure correct process etc.

    Reply
    1. helensparkles

      So you want all the other professionals there but not the SW? That seems odd. Particularly if for example a SW is saying the family aren’t working with them, as a family member I would want to know what they meant by that from an example they could give.

      Reply
      1. Angelo Granda

        I know what you mean ,of course , but can you see how this might be close to the bone,a big cause of problems.
        The only position,strictly speaking, SW’s might take at a settlement conference would be if they attended as advocates to the Dof SS who will be represented ,i presume by the LA solicitor.

        How can an advocate also be an impartial witness in any court proceedings. That is not entirely fair, in my view. The SW’s ( as witnesses) can alter their evidence and assessments as they go along to assist the DofSS in its litigation.
        I recognise all practical difficulties and understand what happens currently and i have empathy with the system etc. but even you may agree that it is not entirely fair. I actually understand the system is not a perfect one and i don’t expect it to be. It is only a civil process after all. The civil authorities have certain processes but their power should be limited. Okay in the minor cases but not in those which are so serious, removal is contemplated. If removal is deemed proportionate to the circumstances of a case then it is also proportionate to have a higher standard of court which follows fair guidelines and procedures scrupulously etc.etc.etc.( you have heard it all before).

        Reply
        1. helensparkles

          The representative of the LA are the SW in this case. The department makes a decision but the directorate don’t attend (unless summoned to explain something), I think you really want the people with the first hand experience in the room so the most important people are the parents and the SW. Otherwise you could just have everyone represented but this kind of what we already have.

          Anyway, I’m off now since a twitter dialogue with Sarah last night. Am sure you will all get along fine without me.

          Reply
        2. Angelo Granda

          When i say removal I really mean permanent placement away from family. In my view, temporary removal with rehabilitation home the target is acceptable.

          Reply
  4. Angelo Granda

    Sarah, A settlement conference should be attended , if we think about it, by those ready,willing and able to make decisions about the kind of support that can be offered to a family ( if it is deemed necessary) and those able to take decisions on funding etc. Also on those able to advise on reformatory actions and treatments available.
    So this means the members or chair person of the CP conference should attend along with an officer from the Dof SS able to anticipate or make funding decisions.
    There may be no place for the CS as i have suggested above.
    Why not? They are not party to the case.They are potential witnesses.They cannot make orders and do not have the power to control funding etc.

    This is,of course, what happens at CP conferences and other meetings which take place under the current system.The SW’s tend to make authoritarian pronouncements then they step away from sensible discussions, do not listen to anyone else and hold firmly to their intended course. I presume these settlement conferences are designed to change all that so the judiciary should consider my suggestion that the SW’s be omitted from the process. The judge,being neutral should take over the role of process-leader ( one which the SW’s seem to appoint themselves to).
    Please note that when professional commentators on this forum step away from discussion with non-professional members of the Public ,it is not helpful to constructive progress. The professionals may have good reasons but their stepping away can be interpreted as avoidance of valid issues. Yes, they may be stupid issues but they are valid to parents and other lay people.

    Professionals at CP conferences should not disrespect those they are meant to be serving which is what SW’s do. They avoid issues at CP conferences , they do not turn up in any positive sense, they only turn up with pre-ordained aims which they are determined to impose.They do not follow the guidelines when they convene it.

    In discussions on the forum, no one has any legal duty to participate and they can step away when they like but i hope this will not happen at a settlement conference.

    Reply
    1. Angelo Granda

      May i add something else which should not be allowed at settlement conferences.

      At CP conferences and other meetings (reviews) in which SW’s are involved , the proceedings lack any real integrity and fairness due to time considerations. They are rushed. When they go in , Chairpersons,IRO’s and SW’s are set on getting to the next one before they even start talking.They will be checking their schedules, being as brief as possible,box-ticking forms and do not engage properly. If a parent raises a valid issue and criticises anyone or anything,they will be silenced .
      How much time will be set aside for a settlement conference? I wonder if it has been decided or will it depend on the test results?

      Reply
      1. Sarah Phillimore Post author

        I don’t know – I guess the pilot scheme is hopefully going to provide some proper data for what works and what doesn’t work. Clearly people mustn’t feel rushed. But many, many courts simply do not have facilities to allow people to hog a number of meeting rooms for hours. I think the practical problems may be what undoes this scheme.

        Reply
        1. Angelo Granda

          Regarding the shortage of meeting rooms, small ,round-table type courtrooms etc. which we anticipate might affect the proposed settlement conference process- the settlement judge’s room in chambers would provide a neutral venue but i don’t know if it is possible. It may be impractical to hog one of the meeting rooms there for hours.

          Reply
          1. Sarah Phillimore Post author

            What we do have to grapple with is that our physical environments really, really matter. It is hard to reassure vulnerable clients if they have to sit within direct eye shot of the other side – I have already had one care case this year derail because I had to contact the police and report witness intimdiation and breach of bail conditions. Had I access to a room some distance from the perpetrator I suspect that could have been entirely avoided.

            And many of our court buildings are simply not fit for purpose. I challenge anyone to visit Swindon, Yate, Aldershot etc to name just a very few, and tell me that these are fit environments for any kind of confidential discussions or letting people feel safe.

            I am afraid I cannot see any way forward on this. The Government is hardly likely to build any new courts, given they are busily shutting down the ones we already have – including Chippenham which was actually purpose built and not bad! It had at least someone to park outside and had made some attempt to provide conference rooms – albeit it not enough.

    2. Sarah Phillimore Post author

      As I understand the settlement conferences, participation must be voluntary and with agreement so I assume if ANYONE feels uncomfortable or does not wish to proceed, then the conference will simply come to an end. A parent can’t be expected to sit in a room with people that he/she does not think genuinely want a discussion; nor can social workers be expected to participate in a process if the parents are abusive or refuse to listen.

      So you may be right to be sceptical about the efficacy of these. But its got to be worth a try. Anything that tries to get us out of the entrenched adversarial position has got to be worth a try.

      But I accept, that by the IRH stage (Issues Resolution Hearing) it may be too late for that and people’s expectations of each other are often pretty much set in stone by then.

      Reply
  5. Angelo Granda

    I am hopeful that this scheme will be a success , mediation is needed and i have previously suggested myself that one barrister cum judge should be involved in the proceedings from the outset to control them and supervise ,check cases are conducted correctly etc. This is a similar idea ; the barrister / judge comes into it later than the CP conference stage but it will still be quite early on in S47 enquiry cases where conferences have been by-passed. Plus when a settlement is reached ,if children have been removed prematurely into care ,they will be returned home much sooner. If SW’s own up to dishonesty or it is exposed by a parent ,they will not have to fear the sack or prosecution as everything remains within the room. Or vice-versa.
    Mind you,as i have already said , to be absolutely fair ,should they attend at all? We should stop and think very carefully about this particular question,not pass over it because parents will say that throughout these cases ,they are empathetic towards SW’s and lawyers etc. We say it is the SW’s alone whose stance is set in stone. When they fail to act according to the law,exceed their powers and remove children and fail in their duties, we say it is they who create hostility.

    A big cause of injustice though is that so-called impartial witnesses and investigators are able to adapt their evidence and add to their assessments as and when respondents negate their previous ones. That is why the current system is so unfair. Also will solicitors need to attend or can they decline as they decline to attend CP conferences? Are they needed?

    All comments welcome.

    Reply
    1. Angelo Granda

      I think this question about supposed impartial investigators and supposed expert assessors who simultaneously play the role of the complainant’s advocate/representative/agent bears examination and analysis.

      How does such a system satisfy the requirement for fairness? ( Art.6).How might it affect justice?

      Do any other civil courts have similar systems or is it just the family court?

      All comments welcome.

      Reply
  6. Angelo Granda

    Does anyone have any idea which areas have been chosen for the test? I know a parent who is applying for discharge of c.o. this month and i am hoping the case is one of those picked.

    Reply
      1. Angelo Granda

        Sarah, Am i right that these settlement conferences will only be applied to Public Law cases? There should be no reason for participants to be kept seperate,surely. The conference will be informal and the mediator ( a trained settlement judge) will be expected to keep an eye on coercive control etc. Plus ,in Public Law cases the only ones who try to control parties are the CS. If SW’s are not present then that factor will be removed.
        The only other factor which might compromise the integrity of a conference , in my opinion, is the presence of the respondent’s solicitor. Sometimes, and many parents agree with me on this, these solicitors can be a big,big problem for respondents. I’ve written before why,suffice now to say they can assist the LA more than their own clients. Let’s just hope the mediator will be sharp enough to spot this sort of thing.

        Reply
      2. Angelo Granda

        Sarah, I hope you don’t mind me asking a little of yout time.Did you manage to find out which areas? Regarding the case i mentioned, the applicant’s solicitors claim they have never heard of settlement conferences.
        Have there been any in Bristol yet and if so,anything to report ( if you are allowed to)?

        Reply
  7. Angelo Granda

    May i add that if the authorities build new courts ,they are usually just as bad . The ante-rooms,interview rooms etc. are usually full up unless you get there very,very early and stand guard over one. Whenever a new courts building is opened, half a dozen smaller ones are closed down so we end up with one courthouse ( albeit four times bigger than the old ones) doing the work of six.

    Reply
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  9. Angelo Granda

    Sarah, Do you happen to know how the settlement conference trial panned out in practice?

    The reason I ask is because in a recent Cof P application which was contested , the Judge ordered a round-table conference to be held in order that an agreement might be arrived at if possible. If all parties were in agreement the Court was to be informed and the final hearing cancelled.
    Despite the Court order no round-table conference was held .The only meeting held was a pre-hearing advocates conference. The parents weren’t invited to it . So the Court Order was flouted. Would that warrant an appeal or can the lawyers do as they wish?

    Reply
    1. Sarah Phillimore Post author

      I think it has been a damp squib tbh.
      I haven’t ever been involved in one
      Lots of people are quite hostile to them in general.

      Reply
  10. Angelo Granda

    It was probably a damp squib because the LA’s and/or the Guardians chose not to attend as they are apparently entitled to do but not for any genuine reason . It would be because they do not want to cooperate with anything constructive or even rub shoulders with parents.
    Plus the parent’s solicitors would have accepted their reasons without protest. Obviously ,when positions are reversed and they are representing LA’s they also would prefer not to attend either so are hardly likely to protest to the Court. I honestly think that Solicitors rarely commission a barrister these days because of the low legal-funding grants. They never go up only down. In a recent case, Mum and Dad were seen at the office by a trainee solicitor only and represented in Court by an Assistant Solicitor and only met her half an hour before the hearing. They were not even interviewed by a solicitor although there was one apparently supervising.
    As you may remember, I predicted that it would be the LA’s which would not cooperate with the trials.
    Damp squib and so we go on and on.

    Reply
  11. Angelo Granda

    To repeat my questions, if a meeting was ordered but never happened, would that warrant an appeal or is it okay to ignore these court orders?

    Reply
    1. Sarah Phillimore Post author

      If a court order is ignored, every party has a duty to refer this immediately to the court and seek an urgent hearing.

      Reply
    2. Sam

      In my experience Angelo court orders are often flouted and nobody , including some judges do anything at all. So basically not worth the piece of paper it is written on, unless I expect you or I where 60 seconds late filing something.

      Reply

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